23 April 2018

Stolen graffiti: Is illegally-created art protected by copyright?

If Banksy was to ever indulge in a little graffiti on our shores, how would our laws protect his art?

Street art has gained popularity and recognition both here and abroad, as evidenced by the recent $40 million Banksy exhibition hosted at Aotea Square in February.

However, when unauthorised graffiti or street art is appropriated and commercialised without the consent of its creator, the law is silent on whether the artist is entitled to enforce a copyright over their work.

Simpson Grierson partner Earl Gray says this question lay at the heart of a recent dispute in the US between fast-fashion retailer H&M and renowned LA street artist Jason “Revok” Williams.

“In this case, street artist Revok issued a cease-and-desist letter to the retailer to try to stop its unauthorised use of one of his murals as a backdrop to their ad campaign. H&M’s response was to initiate a lawsuit against the street artist,” says Gray.

“H&M said that because Revok’s mural was created illegally, like most graffiti, it was not entitled to copyright protection, asserting that this is a privilege under federal law that only extends to legally created works.”

Gray notes that while this claim is not founded in legislation, it does raise some interesting points. He says that there are some policy reasons that might support denying copyright protection to street art.

“For one, affording copyright protection could be seen to be encouraging illicit behaviour and weaken the deterrence created by the criminal law,” says Gray.

“Also, the law usually doesn’t favour people profiting from their own wrongdoing – but the unethical conduct usually must relate to the subject matter of the lawsuit. As the subject matter of the H&M suit would be copyright infringement, not illegal street art, it is hard to see though how these doctrines could apply.”

The law firm says that under New Zealand law, to show the existence of copyright, the artistic work must be original and the author must have been in New Zealand at the time the work was created.

The copyright owner then enjoys the benefit of exclusive economic rights, including the rights, among others, to: copy the work; show the work in public; make an adaptation of the work; and issue copies of the work to the public. There are also moral rights, such as the right to be identified as the author or to not have work falsely attributed to them (both of which were in issue for H&M’s actions).

However, Gray says the question of whether illegally-created graffiti is entitled to copyright protection has yet to be put to the test on New Zealand soil and the Copyright Act 1994 is silent as to whether illegally-created works should be denied protection.

“Even if the New Zealand courts are happy to enforce a street artist’s copyright, I suppose these artwork owners could potentially risk criminal charges when establishing ownership of the copyright by having to admit that they tagged property without the consent of the owner,” Gray says.

“While these issues are all still relatively fresh, and don’t appear to be drying out anytime soon, we will have to wait to see how the New Zealand courts treat these street art works and whether they deem them deserving of protection. I don’t buy the ‘it’s illegal so all bets are off’ line, though.”

Gray says any hopes that H&M’s lawsuit against Revok would provide a bright line rule about copyright protection for unauthorised graffiti, and whether it is or isn’t protected by US copyright law, were dashed when H&M withdrew the case (within a week of filing) and issued an apology.

“Without clear direction from the courts or legislation, this continues to be an interesting aspect of copyright law. From a creative arts perspective, we hope and expect that protection will follow creation in the same way as for other works.”

ENDS

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