The Conflict Of Copyright Protection Of Street Art - Authorship And Ownership Challenge
Author: LawSphereX
Category: Intellectual Property
Published:
Updated:
THE CONFLICT OF COPYRIGHT PROTECTION OF
STREET ART: AUTHORSHIP AND OWNERSHIP
CHALLENGE
Komal Jain, Institute of Law, Nirma University
ABSTRACT
The progress of street art can be observed and measured in various ways, including its evolution in styles, techniques, cultural impact, and the recognition it receives. Street art holds significant importance on various levels, contributing to cultural, social, and individual aspects of society. This paper first throws light on the concept of artistic work and street art and what are the justifications and requirements to consider street art as artistic work. When we talk about copyright, the first question that comes up is about authorship and ownership. In the case of street art, the conflicting question is who will have the authorship and ownership of the art created. This further gives rise to a conflict between protecting creators rights and owners’ property rights. Hence, this paper also looks at the challenges faced by street art when it comes to its protection.
This paper also discusses the use of fair use doctrine for the use of street art without the permission of the artists and the moral rights of the artists of the street art. It is still difficult to find a harmonic balance between legal requirements, the need for artistic expression, and the preservation of public art. The legal system is quite unsettled on the concept of protection of street art under the copyright regime, and there are several loopholes in the protection.
LITERATURE REVIEW
Pratham Ravishankar Joshi, Copyrightability of Street Art and Graffiti under Copyright Act, 1957, 5 INDIAN J.L. & LEGAL RSCH. 1 (2023). This paper, while focusing on various legal theories and precedents from various courts, tries to seek justification for the protection of street art and graffiti. The author also tries to determine the extent to which street art and graffiti should be protected. Joan Infarinato, Copyright Protection for Short-Lived Works of Art, 51 FORDHAM L. REV.
90 (1982). In this paper, the author looks at the statutory provisions regarding the protection of
street art. He also covers the various principles of authorship, which helps the author look at every aspect of granting protection to street art. Tatiana Flessas & Linda Mulcahy, Limiting Law: Art in the Street and Street in the Art, 14 LAW, CULTURE & HUMAN. 219 (2018). This paper deals with traditional views of street art and how it has begun to offer new challenges to conceptions of criminality and property. Based on an observational study in London, this paper suggests a novel theory of the legal challenges brought by street art that emphasizes the sensuous experience of seeing it in the city, as well as street art as a performance rather than artifact.
The fact that street art has become a global phenomenon that draws people to specific locations is evidence of growing calls for the public sphere to be reclaimed from private property developers and corporate entities so that we can enjoy the phantasmagoria of cities decorated, redecorated, and contested by the people who live in them.
METHODOLOGY
In order to write this research paper, secondary sources were used, such as research papers, articles, blogs, and cases from various jurisdictions. The in-depth analysis of various pieces literature helped me frame the idea of intellectual property and street art. This research paper is descriptive and conceptual in nature. It is descriptive in the sense that it tries to identify various characteristics of research objectives and it is conceptual since it examines literature review of past studies conducted in these fields. RESEARCH QUESTION
Whether street art should be protected under the copyright act as artistic work?
The challenge of authorship and ownership in street art, particularly the art created anonymously.
OBJECTIVE
The objective of this research paper is: • To understand the justification for providing protection to street art. • To understand the gray areas in protecting the street art. • To give a possible solution to the loopholes present in protecting the street art.
INTRODUCTION
Street art has roots in graffiti culture and the protest movements of the 20th century. It has evolved from a form of rebellion to a recognised art form, with artists gaining international recognition. Art has changed dramatically over time, and due to the rising recognition of street art in different areas, its protection has become a controversial question. Street art, as the name suggests, is a form of visual art created for public visibility in a public location. As every other artist who creates art on a canvas seeks protection of his or her artistic work from unauthorized use, then what about the art created on the streets. The Copyright Protection Act, 1957 protects ‘original artistic works’ as provided under Section 13(1) of the act.
1 But the question that arises here is whether the street art falls under the ambit of ‘artistic work’ which is defined under Section 2(c) of the act. 2 If it falls under the ambit of artistic work, then comes the next question of authorship and ownership of the work created. The major challenge comes in the case of anonymous work created on the street, as proving the authorship of such work becomes challenging. REQUIREMENTS FOR PROTECTION OF STREET ART The Indian legislation does not expressly provide or state about the protection of street art. When we talk about the protection of any kind of art, the copyright act of 1957 comes into
1 Copyright Act 1957
2 Copyright Act 1957
picture. Street art may be eligible for protection just like any other art if it meets the following criteria: • Originality i. e. , original artistic work • Fixation in tangible form Originality One of the key elements to copyright protection is that the work must be ‘original’. Originality does not have to be intentional, all that is required is that the work be a distinct version of a copyrighted work. 3 It means that the work so created does not require to be absolutely unique or novel but the work should be made independently by the author of the work having its own creativity or expression. There exists different doctrines or tests to determine originality. The major two test among those are, sweat of brown and modicum of creativity. Sweat of the brow: As per this test or doctrine, it provides protection to the work if it involves any kind of labour even if it lacks originality.
This doctrine suggests that the sheer effort and investment of time and resources put into compiling or organizing information, regardless of creativity, could be sufficient to warrant copyright protection. But it should be noted that many jurisdictions have moved away from this doctrine, as that granting copyright protection based solely on effort or labour could stifle competition and innovation by granting monopolies over information that should rightfully be in the public domain. 4 Modicum of creativity: This approach is completely opposite to the sweat of the brow doctrine. not overly restrictive, allowing for a broad range of creative expression to be protected under the law. In the case of Eastern Book Company and Ors. v. D. B. Modak and Anr.
6, the SC to determine the originality of the work, stated that the sweat of the brow is too low of a standard, whereas the modicum of creativity is too high of a standard. Hence, they relied on a middle path, i. e. , the canadian test of ‘Skill and Judgement’ as laid down in the landmark case of CCH Canadian Ltd. V. Law society. 7 This test means that the work so created must not be so trivial as to consider it as a mechanical work but it should be more than that which involves some amount of creativity, skill and judgement. Now talking about the street art, which includes graffiti, murals, stencil art, etc. , the originality can be seen as the artists present their expression in a unique way with some amount of creativity. The art is created independently by the artist, with their expression leading to originality in the art so created by them.
Understandably so, street artists aim to leave their unique mark and respond to their life circumstances. 8 Like any other form of art, original street art often reflects the artist's unique perspective, voice, and personal experiences, whether through symbolism, storytelling, or visual metaphor, artists infuse their work with elements of their own identity and creativity. The street is created on the street walls; hence, they can be regarded as paintings or drawings falling under Section 2(c) of the act. Therefore, street art meets the first requirement for getting copyright protection. Fixation in tangible form It is clear that the ideas cannot be protected, but the expression of the idea is. The fixation requirement for copyright protection is not mentioned in the act explicitly but when we say ‘expression of the idea’, then it has to be in some fixed format in a tangible form.
It means that the art should be preserved. By nature, the street art is not meant to last forever. 9 One may argue that the art can be easily washed off or destroyed because of weather conditions, renovation work, or any such reason. But the counter argument could be the rise of a social media and other technologies wherein art can be captured and kept forever leading to digital
6 Eastern Book Company v. D.B. Modak [2008] 1 SCC 1
7 CCH Canadian Ltd. v. Law Society of Upper Canada [2004] 1 SCR 339
8 Breanna M. Moe, When Copyright Law Meets Anonymous Street Art, 26 MARQ. INTELL. PROP. &
INNOVATION L. REV. 79 (2022).
9 Id. at 8.
documentation. By fixating street art through various methods, we can ensure that these vibrant expressions of creativity are documented, appreciated, and preserved for future generations to enjoy. The work is under copyright protection the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device. 10 But under the copyright act, the requirement is not as much concerned with the permanency of the surface itself as much as the medium upon which ‘artistic work’ is impressed upon, irrespective of the nature of the surface. 11 Therefore, the street art can be fixed in a temporary medium, fulfilling the requirement of fixation. The second requirement also checks the box for granting copyright protection.
From the above discussion, it is clear that street art meets both requirements in order to be considered protected under copyright as an artistic work. It clearly justifies that street art is just like any other art created on a canvas. Hence, it falls within the ambit of copyright protection. FAIR USE In the case of St Art India Foundation & Anr. vs Acko General Insurance 12, the Delhi HC dealt with the concept of fair use where the defendant used the plaintiff’s mural in his advertisement and claimed that such use falls under Section 52(1)(t) of the act as murals are a form of street art located in public areas with public access. But the plaintiff argued that the murals, being an artistic work falls under Section 2(c), hence they are protected. Copyright law allows fair use of a work, which means that the work can be used without the permission of the author of the work.
The reading of Section 52(1)(t) points out the direct exception of the use of painting or any other artistic work situated in a public place or any place having access to the public. 13 Therefore, using the street art without permission falls under fair use. Hence, the street art can be used by anyone without the permission from the artist.
AUTHORSHIP AND OWNERSHIP: THE
CHALLENGE
The major issue or question that revolves around street art is the authorship and ownership of the art. Street art's intrinsic nature frequently involves the creation of artworks on public or
10 https://www.copyright.gov/help/faq/faq-general.html
11 Yogesh Byadwal, Is the Writing on the Wall? Decoding Street Art, Fair Use and Moral Right, SPICY IP, (Dec. 6, 2023), https://spicyip.com/2023/12/st-art-foundation-v-acko-general-insurance-decoding-street-art-fair-useand-moral-rights.html.
12 St Art India Foundation & Anr. vs Acko General Insurance on 10 November, 2023
13 Copyright Act 1957
private property without legal permission. This raises significant considerations about consent and permission. While street artists may want to add to a community's cultural vibrancy, the act itself might be interpreted as an infringement on the property owner's rights. 14 In many cases, the property owner has not specifically granted permission for the artwork to be shown on their grounds. This causes a complex legal and ethical problem, as the rights of the artist, who wishes to express themselves, must be balanced against the rights of the property owner, who may not want their property used as a canvas for others. 15 Addressing these issues of consent and authorization becomes critical in street art, necessitating a thorough analysis of property rights, freedom of expression, and the balance of interests between artists and property owners.
Whatever be it, the authorship remains with the artist of the work without any doubt, as he or she has created that work through his or her skills, creativity, and judgement. But the problem arises when the work is anonymous. The anonymous work can act as a coin with two sides. One, acting as a shield to protect against malicious mischief or vandalism, and on the other side, leaving a question mark as to who created such work. This reliance on hidden identities could raise serious issues for street artists who want to register their artwork. 16 Copyright being an automatic right, meaning it vests with the author as soon as the work is created, remains with the artist even though he is anonymous, but proving such authorship can be a challenge. When a legal issue or the necessity for copyright enforcement develops, finding the true owner of the artwork becomes a complicated task.
In many cases, the distinction between the artist's desire to remain anonymous and their right to preserve their creative work is blurred. Thus, resolving the complex question of ownership and authorship in the context of street art necessitates striking a fine balance between protecting the artist's identity and preserving their copyright interests. It emphasizes the distinctive and problematic nature of street art within the context of intellectual property law. Legality and copyright: As we know, street art is created on someone else’s property despite this, it can hold copyright protection, as one should always remember that copyright is separate.
14 King Stubb & Kasiva, ‘Street Art And Copyright In India: A Legal Perspective’ (King Stubb & Kasiva, 8 November, 2023) 15 King Stubb & Kasiva, ‘Street Art And Copyright In India: A Legal Perspective’ (King Stubb & Kasiva, 8 November, 2023)
16 Breanna M. Moe, When Copyright Law Meets Anonymous Street Art, 26 MARQ. INTELL. PROP. &
INNOVATION L. REV. 79 (2022).
Even if creating the art is illegal, the artist might still hold copyright over the work itself. But the permission to create the art still holds a place, if it is created on private property it can lead to vandalism. The blurred line, or the gray area, is when the property owner incorporates the street art into their space, like keeping a wall instead of repainting it. Demolishing a wall with a mural can be seen as an infringement. MORAL RIGHTS Preserving moral rights in street art can be difficult because of the temporary character of the medium and the often unapproved status of the artwork. Nevertheless, a growing number of street artists are expressing their moral rights by employing legal methods, such as issuing cease and desist letters or initiating litigation, in order to safeguard their artwork and their reputations.
In addition, several communities have started implementing regulations that acknowledge and safeguard the ethical rights of street painters, granting them legal options to address any unauthorized modifications or destruction of their artwork. • Unauthorized creation: Street art typically entails the production of artwork on public or private property without obtaining consent from the property owner or relevant authorities. This illicit creation might provide challenges for artists in asserting their moral rights, as they may lack legal standing to pursue those rights in specific circumstances. • Fleeting Character: Street art is commonly transitory and susceptible to being eradicated, demolished, or modified by proprietors, authorities, or even other artists.
The transient quality of artistic creations might hinder artists from asserting their moral rights, as their work may disappear or undergo substantial modifications before they can intervene. • Insufficient Acknowledgement: Street art is often perceived as an act of defacement rather than a valid form of artistic expression, leading to a dearth of acknowledgment and reverence for the ethical entitlements of street artists. This impression might pose more difficulties for artists in asserting their rights and safeguarding their work from illegal alteration or destruction. • Legal Uncertainty: The legal standing of street art is frequently unclear, especially when it entails the unauthorized utilization of public or private property.
The lack of clarity in this matter might provide obstacles for artists in asserting their moral rights through legal channels, as they may have difficulties in establishing their rights and providing evidence of infringement. • Commercialization: Street art has experienced a growing trend of being monetized in recent years, as companies and brands want to exploit its widespread appeal for financial gain. The commercialization of street art can occasionally clash with the moral rights of street artists, as their artwork may be exploited for commercial gain without their permission or appropriate recognition. SOLUTION The issue of authorship and ownership in street art does not have a single idle conclusion. A comprehensive strategy is necessary to strike a balance between the artist’s entitlement to remain unidentified , safeguarding their artwork and upholding property rights.
Here are a few possible approaches: Legal Frameworks: • Anonymous copyright registration: Anonymous copyright registration is permitted in certain legal systems, either through the use of a pseudonym or by employing an authorized agent. This preserves the artwork's integrity while keeping the artist's name concealed. • Street art registry: A theoretical concept involving a voluntary registry where anonymous artists can document their work (location, photos) with timestamps. This could be helpful in copyright disputes. • Community Recognition: Street art frequently flourishes inside a community. Establishing authorship for acclaimed artists can be facilitated by cultivating trust and recognition within the community.
• Blockchain technology: Although still in its nascent phase in the art world, has the potential to provide an unalterable evidence of ownership for street art through the use of the artist's digital signature, while keeping their name concealed. Finding common ground: • Permission: Advocating for a permission culture, where artists seek consent from property owners, particularly for well-known locations, can foster a mutually beneficial relationship between artists and owners. • Designated art spaces: Designated art spaces, such as designated walls or public art programs, offer legal opportunities for street artists to express themselves while still upholding property rights.
CONCLUSION
The Indian Constitution protects the freedom of expression of views and ideas as a fundamental right. When these concepts are depicted in diverse creative ways, they remain a valued form of expression and should be protected by intellectual property laws. The requirements for copyright protection do qualify for street art, hence, they can be protected under artistic work. But due to their nature it becomes very challenging yet crucial to protect the rights of the artist because of their contribution towards the streets and making them attractive. The major roadblock comes when the art is anonymous. As already mentioned that the street art fulfils the requirement of copyright protection i. e. originality and fixation in tangible medium but even though the anonyms art fulfils the criteria still giving protection to these becomes difficult.
Various countries, such as the United States, France, and Australia, have particular legislation that classifies certain art forms as acts of property modification and imposes specific legal consequences for the unauthorized creation of such art in public spaces. Until present, street art in India has not had any official legal protection. Finding a delicate equilibrium between legal frameworks, the necessity of artistic expression, and the conservation of public art is an ongoing challenge. In the dynamic realm of street art, it is crucial to cultivate artistic innovation while upholding the rights and intentions of the artists who contribute to the urban narrative.