by Panagiotis Kontakos,
As one of the most common street artworks, graffiti writing is identified not only by the use of letters or its style, but also by the way it is done: illegally, in usually dangerous yet visible places. In fact, dictionary definitions of graffiti refer to “writing or drawings scribbled, scratched, or sprayed illicitly on a wall or other surface in a public place”. (Oxford, 2018) Illegality is one of the crucial aspects of graffiti practice and raises the question of potential copyright protection of graffiti writers’ creativity. Even though copyright protection in relation to illegal graffiti is enforced in some countries, others do not provide this kind of protection based on their public policy or doctrines, such as the “unclean hands” doctrine. This analysis elaborates on the necessity of the effective protection of unauthorised graffiti by copyright law in accordance with the ethos of international copyright law and human rights law. (Westenberger, 2019, pp. 55-56)
The Matter of Illegality of Street Artworks
The illegal nature of graffiti and street art refers either to unauthorised content, such as immoral or hate speech, or to the form of placement, such as vandalism or trespassing. Could public policy restrictions or equity principles (for example the “unclean hands” doctrine) reject the copyright protection of street artworks and graffiti? (Westenberger, 2019, p. 56)
In the legal order of United Kingdom, copyright protection of immoral graffiti content has been refused by the courts, meaning that copyright did not subsist in the work, or that copyright could not be enforced, or else that no damages could be awarded. Although the UK Copyright, Design and Patents Act (CDPA) 1988 does not stipulate any ineligibility for copyright protection on the grounds of public policy, copyright may not be enforced based on the content of the graffiti or street artwork due to public policy concerns. This is the case of a “dishonest and misleading work” or a work of “grossly immoral tendency”. (Bently, 2018, p. 123)
In the United States, the doctrine of “unclean hands” cannot be invoked solely because of harm to the public interest. The above-mentioned doctrine refers to a defence to a complaint, which states that a party who is asking for a judgment cannot have the help of the court, if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had “unclean hands”, the plaintiff’s complaint will be dismissed or the plaintiff will be denied judgment. According to the U.S. approach, the doctrine is not applicable in case there is no direct relation between the plaintiff’s misconduct and the merits of the controversy between the parties. In contrast, it applies only where the wrongful acts in some measure affect the equitable relations between the parties. In this context, the element of illegality in copyright protection would adequately correspond to cases where the unauthorised behaviour directly affects both parties, for example in relation to the rights of the owner of a building where the graffiti was made to make use of their property, including whitewashing of the graffiti. (Schwender, 2008, p. 257)
Moreover, the approaches of civil law jurisdictions should be distinguished from the common law jurisdictions. In civil law countries, there is the tendency to grant copyright protection regardless the illegality of the graffiti. These countries try to find a balance between the competing interests. However, common law countries, where remedies are provided based on equity, and where the doctrine of “unclean hands”, illegality or public interest concerns may apply, tend to consider that illegality refuses the copyright protection of graffiti artworks. (Westenberger, 2019, pp. 57-58)
In Australia, remedies for injunction are equitable and rarely apply in the case of illegal graffiti. The potential damages cannot be easily quantified. The court is likely to consider “the plaintiff, who would have committed civil and criminal wrongs, not having acted justly in relation to the property owner’s interests – thus it is more likely that legal graffiti and street art receives protection through the available remedies”. (Westenberger, 2019, p. 58)
In New Zealand, there is no decision that has determined whether a non- commissioned artwork attracts copyright and moral rights, or, if such rights exist, whether they are enforceable. Nonetheless, the court could use its jurisdiction to reject or accept a non-commissioned artist’s suit for a remedy for a breach of their copyright and moral rights, considering the public policy or the equitable principle of clean hands. (Westenberger, 2019, p. 58)
In relation to Canada, it remains unclear whether illegal street art is protected by copyright, since there is no relevant provision. Canadian courts could deny protection at the enforcement stage rather than not recognising copyright subsistence. Concerning unauthorised street art and graffiti, copyright subsistence would not be refused, but there would be restrictions to the available remedies. (Westenberger, 2019, p. 58)
In Germany, in the case Re Pictures on the Berlin Wall (1997), the Court stipulates that “it is not in principle relevant to the possibility of copyright protection by statute for the creation of a work that the way in which it was produced is evidently unlawful— in this case by virtue of an act of damage to property subject to civil and criminal sanctions”. (Westenberger, 2019, p. 58)
The French Civil Code does not refuse protection to illegal works and the courts does not seem to consider illegality as an obstacle when deciding on the originality of the work. (Westenberger, 2019, pp. 58-59)
In Greece, even though unauthorised street art is likely to constitute the outcome of illegal activity, this artwork could enjoy copyright protection if the subsistence requirements are fulfilled. (Westenberger, 2019, pp. 58-60)
Is the creator protected when the illegal graffiti work is removed by the owner of the property via cleaning or destroying the unsolicited artwork? What is the impact of illegality in the applicability of moral rights? Is the right of integrity engaged in erasing (whitewashing) or destroying unsolicited graffiti artworks? (Westenberger, 2019, p. 61)
The US Visual Artists Rights Act 1990 (VARA) could potentially protect the unauthorised graffiti against destruction in case the artwork could be safely removed. The U.S. jurisprudence confirms that is no general right to destroy artworks that are on property without the permission of the owner. However, in the United Kingdom, “graffiti or indeed any artwork would possibly not be covered against destruction, regardless of it having been legally or illegally created, and in any case an integrity violation would require a harm to the honour or reputation of the author”. (Garnett, 2016, pp. 245-246)
In civil law countries, there is still space for a balanced approach regarding conflicting interests to be achieved. In relation to Colombia, “graffiti placed on someone’s property without their permission cannot affect the property rights of the owner of the building, and thus the property owner could be entitled to remove the graffiti without violating integrity rights”. In Greece, “in conflicts between copyright and property rights regarding the destruction of graffiti art, the unauthorised and illegal nature of the activity is more likely to shift the balance towards the owner of the material support”. (Westenberger, 2019, p. 61)
In Germany, according to the Pictures on the Berlin Wall case, “[the owner of property] must also remain free to destroy a work of art (although protected by copyright) that is thrust upon him against his will”; nevertheless, “even if the owner must in principle be granted the right to destroy the work, that does not mean that he is also generally entitled to exploit the work economically; for the interference with his property rights that has occurred by itself only justifies the removal of the work, but not its independent economic exploitation”. The right to authorize the whitewashing of the graffiti would only be granted to the owner of the material carrier. (Westenberger, 2019, p. 62)
International Protection of Illegal Street Artworks
The protection of illegal street art could be based on international copyright law and human rights laws, in particular the Berne Convention and the United Nations (UN) International Covenant on Economic, Social and Cultural Rights of 1966. (Westenberger, 2019, pp. 62-63)
The Article 2 of the Berne Convention for the Protection of Literary and Artistic Works protects “literary and artistic works”. Graffiti and street artworks belong to the category of artistic and literary work. The Berne Convention facilitates the eligibility of copyright protection. According to the Article 5(2) of the Convention, the enjoyment and exercise of copyright shall not be subject to any formality. The Article 2(3) recognises copyright protection to derivative works, even when they have not been authorised by the original copyright owner. Although the protection provided “without prejudice to the copyright in the original work” could safeguard the original owners’ right to seek remedies against the unauthorized use, it would arguably not allow such owners to use the derivative work without permission of the author of the derivative work, thus effectively giving protection to an illegally produced work. This form of intellectual activity shall be protected.
Copyright may subsist in a derivative work even though it may infringe copyright in the original work. The owner of copyright must be entitled to restrain publication of an infringing work. However, the idea that he should benefit from another’s original work, by exploiting it, constitutes an offence against justice and common sense, no matter how extensive such work might be and no matter how innocent the incentives might be. By analogy, the same could be applicable to illegal graffiti. It is an intellectual and creative activity that ought to be protected. A commercial exploitation of graffiti works would mean lack of justice in relation to the authors. (Westenberger, 2019, pp. 63-64)
The Berne Convention was adopted in 1886 in order to safeguard the international protection of author’s rights. The declarations of the Assembly of the Berne Union clarify the importance of copyright protection:
“Copyright is based on human rights and justice and that authors, as creators of beauty, entertainment and learning deserve that their rights in their creations be recognized and effectively protected both in their own country and in all other countries of the world. The law of copyright has enriched and will continue to enrich mankind by encouraging intellectual creativity and by serving as an incentive for the dissemination throughout the world of expressions of the arts, learning and information for the benefit of all people.” (Ginsburg, 2006, p. 130)
Furthermore, a human rights approach on the protection of authors’ rights is based on Article 15 of the United Nations International Covenant on Economic Social and Cultural Rights 1966 (ICESCR). This article “recognises the right of everyone: (a) to take part in cultural life” and “(c) to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. The safeguard of creators’ interests ensures their active contribution to the arts and sciences and to the progress of society as a whole. The Article 15(2) of ICESCR confirms that the State Parties should take steps for the full realisation of creators’ rights, including those necessary for conservation, development and diffusion of science and culture. In fact, the Article 15 of the International Covenant obliges the States to ensure an adequate enforcement system. The failure of a State “to enforce relevant laws or to provide administrative, judicial or other appropriate remedies enabling authors to assert their rights under Article 15, paragraph 1(c)” constitutes violation of the above-mentioned article. (Westenberger, 2017, p. 190)
However, could graffiti and street artworks fall under the meaning of culture? “Culture” is a broad and indefinite concept. It covers all forms of creativity and expression of groups or individuals, both in their ways of life and in their artistic activities. According to the UN Special Rapporteur in the field of cultural rights, Ms Farida Shaheed, “the use of public space for art is crucial as it allows people, including marginalized people, to freely access, enjoy and sometimes contribute to the arts, including in its most contemporary forms. In some cases, artistic expressions and creations are used in public spaces as a peaceful way of manifesting dissent or alternative viewpoints”. Graffiti can formulate a way out of criminality and has opened career paths for many artists. It also represents a culture of learning as illegal spaces remain more culturally and symbolically lucrative for many writers. Copyright protection of illegal artworks would enforce a diverse culture and eliminate a possible commercial misappropriation of graffiti artists’ work. (Westenberger, 2019, pp. 64-66)
Refusing the copyright protection of street art could violate the principle of non-discrimination reflected in the ICESCR. This would happen, because not every street artist will be legally authorised to place their work in public spaces. For that reason, efforts by city councils have managed to offer protection to street art produced without permission. Of course, this protection cannot be absolute when conflicting with legitimate interests of other parties such as the owner of the building. Despite the non-absolute nature of the protection, the cultural and social value of illegally created artworks is undoubtable. The analogy with the Article 2(3) of the Berne Convention could conclude that the party affected by the illegal nature of the artwork or graffiti shall seek the appropriate remedies where available. For example, the owner of the tangible property where the graffiti is placed without authorisation could have these necessary remedies available. (Westenberger, 2019, pp. 65-66)
Consequently, the purpose of international copyright protection is to offer justice to authors, as justified by their contribution to creativity, “and therefore the protection of street art by copyright law is aligned with its purpose to incentivise and reward creativity, culture and the arts”. (Westenberger, 2019, p. 66)
Balance of Interests
On the one hand, the unfairness of illegality of street artwork would permit its commercial exploitation by a third party. On the other hand, it does not seem fair to provide street artists with unlimited moral rights to complain about the destruction of unsolicited works. Concerning the rights of the owner of the building to remove such artwork, it would be preferable to clean a wall by city councils or owners of buildings if the graffiti is unsolicited. (Westenberger, 2019, p. 67)
The owner of intangible property, where the unauthorised art is placed, could act in two ways: either whitewash the illegal graffiti and safeguard the right of integrity or remove the illegal graffiti for sale purposes. (Westenberger, 2019, p. 67)
Concerning the whitewashing, the balance could be found on providing the chance to the artist to remove the unsolicited graffiti if possible. The author could also purchase the support where the artwork is placed or at least document the work before destruction. The German legal order authorises the owner of the property to destroy the work, but he/she has no right to exploit it commercially. The street artworks are meant for the public and their removal for personal gain is unacceptable. For that reason, removed street artworks are usually referred to as “stolen”. (Westenberger, 2019, p. 67)
The unauthorised exploitation of street art has resulted in many lawsuits, as corporations use the work of street artists in advertising material or produce design without prior permission. The illegal behaviour of the street or graffiti artist does not have a negative impact on the individual or organisation, which has misappropriated the illegally placed art (it instead negatively affects the owner of the property upon which the work is placed, which however is not party to the proceeding). The moral and material interests of the artists justify the need of protection of their work against commercial misappropriation as well as the obligation of third parties to seek permission or to provide remuneration for taking advantage of their artistic work. (Davies, 2013, pp. 27, 51)
In conclusion, based on the Berne Convention and the ICESCR, an analogy between the protection of unauthorized derivative works with illegal graffiti would seem necessary. The copyright protection of illegal street artworks covers intellectual and creative activities. The parties affected by the unauthorised nature of graffiti shall seek the appropriate remedies where available. A human rights approach would facilitate the protection of the creator’s moral and material interests though national effective enforcement mechanisms. Taking into consideration that the art facilitates the preservation of culture and enables the expression of creative ideas and imagination, street artworks deserve to be protected and street artists deserve to be rewarded for their cultural creations.
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