“Copyright is for losers”, once claimed UK-based popular street artist Banksy. The famously elusive artist was in the headlines recently for losing a trademark battle with Full Colour Black, a greeting cards company.[i] His right to trademark his famous graffiti ‘Flower Thrower’ as a trademark was challenged. The European Union’s Intellectual Property Office (EUIPO) was of the view that Banksy’s decision to avail trademark protection instead of copyright was to avoid losing his anonymity. Filing for copyright protection would require him to reveal his identity, which would be against his persona. Like Banksy, other street artists have engaged in frequent tuffs with prominent companies and advertisers for infringement of their work. The growing significance of street art in today’s culture has brought their economic benefits into focus. In fact, many of the street artworks today are commissioned. However, can the street artists claim copyright protection over their street art?
STREET ART: AN UMBRELLA TERM?
Today, the terms ‘graffiti’ and ‘street art’ are used interchangeably. However, there exist significant differences between the two. Every ‘art on the street’ is not termed as street art. By definition, graffiti refers to markings, photos, words, initials, or drawings that have been spray-painted, sketched, or even scratched onto walls, sidewalks, or any other publicly accessible areas.[ii] The term has been derived from the Italian word ‘graffio’ which means ‘to scratch.’The story of graffiti begins with ancient human civilisations. The markings found on rocks and cave walls have now evolved to phrases and drawings on billboards and subways. It is likely due to this reason that graffiti artists prefer to refer to themselves as ‘writers’ instead of artists. During the 20th century, graffiti in the United States and Europe were closely associated with gangs, who used it for a variety of purposes like marking their territory or boasting about acts committed by the gang members.[iii] The rebellious streak associated with graffiti is perhaps what led to the proliferation of the art form. The modern version of scratching one’s name is called ‘tagging’, which represents the core of graffiti writing.[iv] Whether graffiti is an ‘art’ or ‘vandalism’ will depend upon the eye of the beholder.
In contrast, street art can be defined as “public-space artwork that’s created for consumption outside of the typical art gallery setting.”[v] The origin of street art lies in graffiti art. While graffiti writers prefer to live under the garb of anonymity, it is not the case with street artists. Graffiti are often an outlet for self-expression for the graffiti writers who want to be associated with their work only through nicknames and aliases. In contrast, street artists wish for public to engage with their work while associating them with their artwork. Despite the few technical differences such as the use of art forms and materials between graffiti and street art, these art forms are an undeniable part of urban culture. They are frequently used as instruments for social and political activism. Interestingly, places like Bogota, Berlin, Cape Town and Istanbul promote street art by arranging tours and festivals. Initiatives like these make the public realise that art need not be restricted to canvases and galleries to be appreciated.
REQUIREMENTS FOR COPYRIGHT PROTECTION-DOES STREET ART CHECK THE BOXES?
Copyright protects ‘literary’ and ‘artistic’ works. The idea behind copyrights is to protect one’s creative expressions, irrespective of its form. For a work to be eligible for copyright protection, it must be original. This is also the key requirement mentioned in copyright laws across the world. Simply put, if your work is an imitation of someone else’s, you cannot avail copyright protection. The rationale is that the creator must be awarded for the efforts put in their creative expression. Therefore, it is logical that copied works must not be acceptable for copyright protection. The test for originality is different in various jurisdictions. As per the ‘Sweat of the Brow’ test, the author gains rights if they can establish the efforts put in the work, even if such work lacks imagination or judgement. On the other hand, the ‘Modicum of creativity’ test lays down that the work should involve a minimum degree of creativity to be original and copyrightable. In addition to being original, the work must be ‘fixed’ in a tangible form. In most jurisdictions, registration of copyrights is not necessary. It implies that copyright comes into play the moment the work is ‘fixed.’ However, registration comes with its own host of legal benefits. Any street art which fulfils the aforementioned requirements will ideally be eligible for copyright protection. The artist can raise their voice against any reproduction, replication and use which were not permitted by them.
DE MINIMIS USE
While street artworks are eligible for copyright protection, not every infringement claim will be entertained. How do you then determine if there has been in fact an infringement or not? This is where the de minimis doctrine comes into the picture. In the copyright arena, de minimis refers to copying that has occurred to an extent too trivial in nature. A few years ago, HBO’s show Vinyl found itself in troubled waters when a graffiti artist claimed copyright infringement. In one of the scenes, a woman is seen walking down a New York City street and passing a dumpster tagged with graffiti stating “art we all.” Artist Itoffee R. Gayle claimed this was an infringement of his copyright over the artwork as HBO did not contact him before using it. The Court found that the graffiti were filmed in such a way that the graffiti was hard to notice as the focus was on the actress. If the copying is of such an extent that it is deemed to be too trivial, it constitutes ‘de minmis’ use.[vi] Consequently, Gayle’s claim did not succeed. Similarly, another street artist known as LMNOPI claimed copyright infringement by XYZ Films, an American film production company. LMNOPI had created a mural on a building located in Brooklyn, which she later learnt had appeared in a film produced by XYZ Films. Since the film was available for online streaming, she also sued Netflix, Amazon, Apple, and Google. She claimed that the Mural was featured in 3.5 seconds of the opening scene of the Film in a full-screen shot and perfect focus. However, the Court dismissed the claim by holding that it was a de minimis use. Moreover, there were other elements in the frame which obscured the mural.[vii] Thus, incidental use of the artwork will not constitute its copyright infringement if such use is minor in nature.
ARE ILLEGAL ARTWORKS ELIGIBLE FOR COPYRIGHT PROTECTION TOO?
Consent plays an important role in determining the legal status of graffiti work.[viii] Sanctioned or commissioned artwork will be treated like any other work within copyright laws. The issue of protectability has been debated in cases of illegal or unsanctioned works. Artwork will be considered to be illegal if it is created on surfaces without the owner’s permission. There appears to be a divided opinion regarding the illegality of graffiti works. On one hand, the art form is an outlet for their freedom of expression. On the other hand, since vandalism is a crime, the artist should not benefit from his work. After all, one should not benefit from his own wrong. This is a common ground taken by those who justify their action of using a street artwork for their economic gain. For instance, in one of its campaigns, H&M featured a photograph and video of a model backflipping off a wall with graffiti art by artist REVOK. On receiving a cease-and-desist letter from his lawyer, the company filed a lawsuit against REVOK claiming that the product of an illegal act could not be protected by copyright law. Later, H&M withdrew its complaint and removed the campaign from the website.[ix] Copyright laws have taken a neutral stance regarding protecting illegal street art. It is irrelevant if there are illegal elements in the tangible embodiment of a work (i.e., applying paint to a wall without the owner’s permission) or if the tangible embodiment of a work belongs to someone other than the author of the work. The rights (and wrongs) related to the work and to its tangible embodiment are independent.[x] In instances where copyright infringement of illegal street art has taken place, the Courts have focused more on the infringement part without bothering about the illegality aspect. For example, a graffiti artist named Hiram Villa (known as UNONE) filed a copyright infringement suit against Pearson Education for publishing a reproduction of his unsanctioned work in a book without his consent. Initially, the case was dismissed due to lack of copyright registration. Later, the Court explained in its decision that it “assumed, without deciding, that the work is copyrightable.”[xi] Eventually, the parties resorted to an out-of-court settlement before the Court could pronounce its decision. Therefore, it is still unclear if the illegal nature of fixation of artwork comes in the way of granting copyright protection to it.
POPULAR COPYRIGHT INFRINGEMENT CLAIMS
Last year, a New York-based street artist named Julian Rivera sued Walmart and Ellen DeGeneres for using his design without his consent. Walmart and Ellen collaborated to launch a clothing line called EV1. Each apparel in the clothing line prominently features a heart logo that rounded off into a cursive “love” at the bottom. The design is similar to Rivera’s distinct, heart-shaped design. Rivera has used his heart design extensively in his own work, not only as a signature of sorts in his art but as a logo on a range of products sold through his website and other retailers. When he attempted to reach out to Walmart, they asserted that the graphic was ‘significantly different’ and his design is only ‘minimally creative.’[xii] It has not yet been decided whether infringement has taken place.
In 2017, McDonald's launched a new campaign in the Netherlands which was a documentary-style video titled “The Vibe of Bushwick NY” to promote their bagel-burger called ‘New York Bagel Supreme.’ Unfortunately, street artists clearly were not ‘lovin' it’, as the video featured their legally created artwork without their knowledge and consent. Six Brooklyn street artists sent McDonald's a letter threatening legal action over copyright infringement, false endorsement, damages to their work and reputation, and profits from unauthorized use of their artwork. Although the chain did not release any kind of official statement, the video has been pulled down from the website.[xiii] Incidentally, this is not the first time that McDonald's used street artwork without seeking the artist’s permission. In 2016, the chain decided to revamp the interiors of its restaurants to give it a ‘grungy’ look. In an attempt to portray itself as the ‘brand of the streets’, McDonald's used graffiti art on their decors. This prompted a copyright infringement claim by the estate of the deceased street artist Dash Snow. Although McDonald's was repeatedly asked to remove Snow’ recognisable SACE tag, it did not do so. As a result, Snow’s family began formal legal proceedings in a federal court in California. However, the case was later dismissed on grounds unrelated to copyright infringement.[xiv]
To conclude, street art and graffiti do fall under the ambit of copyright laws. However, it is pertinent to note that granting copyright protection to such artwork does not seem to be the reason for the survival of these artforms. They have continued to thrive even without the interference of intellectual property laws. Yet, copyright protection is a handy tool in the hands of the creators when it comes to battling with infringement. The aspect of illegality must not come in the way of granting copyright to the graffiti writers and artists. Denying copyright to illegal street and graffiti art would have the effect of making the misappropriating of it legal, but not its very creation.[xv]
Image: Love Is In The Air, also known as the Flower Thrower or LIITA by Banksy. First appeared as a graffiti art wall stencil in 2003 in Jerusalem shortly after the West Bank Wall was built. (Credits: hexagongallery.com)
References: [i] Banksy loses battle with greetings card firm over 'flower bomber' trademark, BBC (Sept 17, 2020), https://www.bbc.com/news/entertainment-arts-54189113 (last visited Oct. 24, 2020). [ii] “Street Art” vs. “Graffiti”: What’s The Difference?, Dictionary.com , https://www.dictionary.com/e/street-art-vs-graffiti/ (last visited Oct. 24, 2020) [iii] Scott H. Decker & Glen D. Curry, Graffiti, Encyclopædia Britannica (May 06, 2020) https://www.britannica.com/art/graffiti-art (last visited Oct. 24, 2020) [iv] Jill C. Weisberg, The Difference Between Street Art and Graffiti, Schrift & Farbe Design Group (May 16, 2020) https://schriftfarbe.com/the-difference-between-street-art-and-graffiti (last visited Oct. 24, 2020). [v] Supra note 2 [vi] Gayle v. Home Box Office, 2018 WL 2059657 (S.D.N.Y. May 1, 2018), appeal docketed, No. 18-1536 (2d Cir. May 21, 2018). [vii] Amelia Brankov, NY Court Tosses Lawsuit Over Street Art Depicted in Film, Frankfurt Kurnit Klein & Selz PC (Apr. 16, 2020) https://ipandmedialaw.fkks.com/post/102g4ve/ny-court-tosses-lawsuit-over-street-art-depicted-in-film (last visited Oct. 24, 2020). [viii] Celia Lerman, Protecting Artistic Vandalism: Graffiti And Copyright Law, VOL. 2:295 N.Y.U. JOURNAL OF INTELL. PROP. & ENT. LAW 295, 313 (2013). [ix] Sonia Rao, H&M’s battle with the artist Revok shows how street art is being taken seriously, Washington Post (March 16, 2020) https://www.washingtonpost.com/news/arts-and-entertainment/wp/2018/03/16/hms-battle-with-the-artist-revok-shows-how-street-art-is-being-taken-seriously/ (last visited Oct. 24, 2020). [x] Supra note 8 at 317. [xi] Villa v. Pearson Education, Inc., 2003 WL 22922178 [xii] Benjamin Sutton, A street artist is suing Ellen Degeneres and Walmart for copyright infringement, Artsy (Jul 31, 2019) https://www.artsy.net/news/artsy-editorial-street-artist-suing-ellen-degeneres-walmart-copyright-infringement (last visited Oct. 24. 2020). [xiii] Brian Boucher, Not Lovin’ It: Street Artists Slam McDonald’s for Using Their Work in New Ad, ArtnetNews (Apr 19, 2017) https://news.artnet.com/art-world/nyc-graffiti-artists-mcdonalds-929855 (last visited Oct. 24, 2020). [xiv] Nicholas O'Donnell, McDonald's Beats Graffiti Copyright Claims in California, But Faces New Threat over New York Street Art, The Art Law Report Sullivan & Worcester, (Apr 26, 2017) https://blog.sullivanlaw.com/artlawreport/mcdonalds-beats-graffiti-copyright-claims-in-california-but-faces-new-threat-over-new-york-street-art#page=1 (last visited Oct. 24, 2020). [xv] Jamison Davies, Art Crimes?: Theoretical Perspectives on Copyright Protection for Illegally-Created Graffiti Art, 65 Me. L. Rev. 27, 51 (2013).