“Copyright is for losers.” Graffiti as an IP outcast

A famous graffiti artist Banksy never admitted he is an author of his artworks. Except for the book “Wall and piece” (Century, The Random House Group Limited 2005). There on the intro page he does claim authorship — “Against his better judgement, Banksy has asserted his right under the Copyright, Designs and Patent Act, 1988 to be identified as the author of this work.” Also Banksy’s well-known quote: “Copyright is for losers” has a copyright sign behind it. Yet, that’s where Intellectual property (further - IP) protection basically “ends” for graffiti artists, those “street vandals” damaging properties belonging to someone else, or… doesn’t it?

In their research paper “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design” (2006) professors Kal Raustiala and Christopher Springman talk about the so-called Intellectual property’s “negative space”. This concerns industries which involve substantial creativity that are either unregulated or only partially regulated by actual IP law. Put differently, IP’s “negative space” is “the territory where IP law may regulate, but… does not.” This is clearly the case for graffiti.

Before I elaborate on the legal problems surrounding this matter, I would like to clear out some definitions. On many occasions the term street art is used synonymously with graffiti, yet that’s not entirely correct. When it comes to street art, legally speaking, these are artworks which have been either allowed or even commissioned. In case of graffiti, it is the result of an illegal act.

While it is tempting to claim that only legal street art deserves to be awarded copyright protection, this would neither be true, nor would it follow the spirit of copyright laws.

To think about it, copyright by definition protects “original works fixed in any tangible medium of expression”. Nowhere in copyright laws will you find a requirement for “legality” of such “fixation”. Moreover, the spirit of the copyright protection is rather geared towards promoting the artistic expression rather than limiting it, clashing with other laws of course; especially those within the criminal and property field. So if we talk about the relationship between the graffiti artist and the property owner, it might seem obvious that the former has violated the rights of the latter and should be punished criminally (or administratively) for this wrongdoing, irrespective of whether it is regarded as art or not.

On one hand, that’s true. However, an issue arises if the graffiti artist in question is someone as famous as Banksy and the owner of the property, instead of wanting to clear it, is eager to sell and earn quite some money. It becomes even more interesting when there are other beneficiaries coming into the spotlight. Consider the case of already mentioned Banksy. His work “Slave Labour” made on the side of a shop in North London in late 2012 miraculously ended up in an auction house in Florida. What followed were protests of Londoners claiming that this piece of art should never have left London. It was indeed returned, though just to be eventually sold for 1.1 million US dollars at another auction. Banksy did not receive anything from this deal. To be fair, he also never claimed authorship of this work, although it was unequivocally attributed to him by art experts.

Thus, is it fair that someone creates an admirable piece of art (even though illegally) and someone else gets money for it (way exceeding the possible repair costs of the “damage”)?

Another case. Tierney, known for his “Vandal Eyes”, versus fashion mogul Moschino, incorporating this artwork into its fashion line. One cannot forget that street culture remains a very attractive field for a lot of people. Street “credibility” if you will, might result in enhanced sales figures. But knowing this, can it possibly be fair to use graffiti without permission, recognition and due compensation to create a fashion line? Wouldn’t it result in “potential confusion on the part of consumers as to the origin of the goods in question”? However, above all, this is also the case where someone else benefits from the creative genius of another person.

The Moschino case is not a sole example. AholSniffsGlue versus American Eagle Outfitters is another one. The latter as the company targeting mostly teenagers and young urban adults chose to feature AholSniffsGlue’s murals in its marketing campaign. Notable about that campaign were the models imitating graffiti artists. It seemed like they were making the artwork! Even more, at the opening of the new American Eagle Outfitters store in Colombia the company recreated the artist’s murals in an indoor mall and put the company’s logo over them, which all essentially is… stealing authorship.

There is also another dimension to possible violations of graffiti artists’ rights. Consider the case of Brazilian artist Jose Carlos Martinat who removed some graffiti’s from walls in the city and offered them for sale at a gallery. This act of, as it was called, “vandalism against vandalism” was fiercely objected by the graffiti artists affected. Their response was the destruction of their own works right at the gallery where Martinat exhibited them. Who is guilty here and guilty of what?

Sometimes the legal issues are even more complex as they go cross-border. At the 2008 Beijing Olympic Games in China, the Spanishsynchronized swimming team wore swimsuits reproducing a German graffiti artist’s Cantwo’s artwork… Here the question arises not only ifand whom to sue, but also where would that be possible?

Now, talking logically:

• first, classic copyright encompasses moral rights and economic rights of the author, and one can exist without the other. That means that there is no inherent problem with the entitlement to certain moral rights, while having no claim over the economic ones.
• Second, owning a copyright doesn’t equal owning an actual copy of the work. Thus, the fact that the wall belongs to the property owner, doesn’t mean that he possesses also the copyright, especially not the moral rights. It goes also the other way, as graffiti artist cannot just by virtue of having moral rights of an author, have any rights stemming from the property right.
• Third, while the right of attribution in case of graffiti (illegal artwork) is in a way waived by the graffiti author himself, it cannot mean that somebody else can claim the authorship for something he hasn’t created.

Basically, in the graffiti artist vs. property owner relationship, it seems logical that such rights as e.g. the right to display or even the right to destroy the graffiti would be vested in the property owner rather than the graffiti artist. Questions arise with respect to (1) the right to sell and more precisely to the compensation; and to (2) whether the destruction of graffiti would require a good faith attempt to notify the author. The latter stems from the Visual Artists Rights Act (US), but, to the best of my knowledge, is not mentioned in any other copyright act. As to the compensation (once again, to the best of my knowledge) it is only under the UK Artist’s Resale Right that graffiti might (yet, not unambiguously “is”) be subject to a royalty on the net purchase price of the work sold. Of course, any compensation claim requires proper attribution, while asserting authorship might result in criminal (or administrative) charges for the author. Thus, for a graffiti artist it is a truly thin line to walk.

Nonetheless, while there is more clarity as to the issues arising in graffiti artist vs. property owner relationship, things get complicated when it comes to third persons. Taking pictures without permission and attempting to profit out of it, or incorporating graffiti in a fashion line, or removing the piece with the intention of selling it (while not being the property owner) — all this in the spirit of copyright would constitute an infringement. At the same time in the absence of clear legal provisions and case law, all this is not so straightforward. To note on case law, while there are plenty of cases all around the world, a majority of them ended in settlements, thus cannot be truly used as precedents to refer to.

Either or, graffiti is a thriving creative field with lots of admirers which on top of that becomes a valuable commodity in the modern art market. Therefore, there are plentiful questions pertaining to IP rights and entitlements, that cannot be left to logical deductions and assumptions alone; there is a need for legal clarity.

As a final note, some of the artists (world famous Keith Haring, Os Gemeos, Jean-Michel Basquiat, just to name a few) started by creating their works illegally, yet “switched sides” with time and continued their artistic route by creating legal and truly world renown artworks. Thus, the question is: wouldn’t the due IP protection of graffiti also incentivize more artists to “switch sides”?