From the 2000 year old scribbles discovered in Pompeii (too rude to repeat on IP Whiteboard) to the ‘Darren woz here’ tagged on local bus stops, graffiti has long been considered a public nuisance, more vandalism than creative expression. Despite its ignoble history, in the past decade, graffiti has come to be considered a form of high art in itself and is now more commonly dubbed ‘street art.’ The phenomenon of Banksy, whose work regularly attracts six figures in the art market and is prominently displayed in galleries around the world, epitomizes graffiti’s newfound credibility and mainstream appeal.
But not all share an appreciation for this form of ‘art’ and the impulse to deface or remove it remains, with over $100 million a year spent on graffiti removal in NSW alone. Indeed, an entire Wikipedia page is dedicated to works of Banksy that have been damaged or defaced (see here). Much of this is to do with the medium itself – a street artist’s canvas is more often than not someone else’s property, affixed without the permission or knowledge of the owner. Graffiti aficionados have adopted somewhat drastic, grassroots measures to protect their beloved art-form, for example the ‘Wet Wipe Gang’ was formed during Banksy’s ‘residency’ in New York City for the sole purpose of physically guarding and at times restoring Bansky’s work, and local residents have since hired 24-hour security to guard his works. Unfortunately though, many of those pieces have still managed to find their way onto the Wikipedia page in recent months.
Preservation of the art is clearly a major issue for the graffiti community. As the City of Sydney stalls in releasing its revised street art policy, reportedly supportive of preserving particular works even when un-authorised and technically illegal, it is important to consider alternative, legal, means by which street artists can prevent their work from defacement or removal. More specifically, are these artists able to have recourse to intellectual property rights to preserve their work?
Assuming that copyright subsists in graffiti it is still unlikely to be of much help to a graffiti artist in preventing the defacement or destruction of their work when it is on another person’s surface. None of the exclusive rights that subsist in relation to copyrighted works relate to the preservation of the work. The copyright in a work is distinct from the ownership of the physical object on which the work is embodied. Just as the owner of a surface on which graffiti has been applied likely can’t exploit the intellectual property in the work merely because it has been illegally produced on their property (subject to perhaps an argument of implied consent), the artist does not have any right over the physical painting itself, which remains with the property owner to deal with as they like.
One possible source of protection against the removal or defacement of graffiti is the artist’s moral rights. Moral rights are distinct from copyright and are based on the author’s creative sense of self, including their right to protect their personal relationship with their work. Specifically, a street artist may make use of the right of integrity of authorship under section 195AI of the Copyright Act 1968 (Cth), that is, the right not to have their work subjected to derogatory treatment. ‘Derogatory treatment’ includes anything that results in a material ‘distortion of, the destruction or mutilation of, or a material alteration to, the work that is prejudicial to the author’s honour or reputation.’ The defacement or removal of graffiti from the surface of a building falls squarely within this definition. If a successful claim for infringement of this right is made against a property owner, the court may grant an injunction, damages, a declaration that the right has been infringed, an order that a defendant make a public apology or an order that the derogatory treatment of the work be reversed or removed.
The right of integrity is clearly a plausible weapon in the preservation of graffiti works. However, moral rights in relation to visual artists have never been tested in an Australian court and many of its features may make it difficult to be of any use in the unique case of graffiti.
Honour and Reputation
The recent failure of a collective of street artists in preventing the destruction of their works adorning the ‘5Pointz’ complex in New York may be illustrative of the problems potentially faced by graffiti artists in Australia in enforcing their right of integrity. 5Pointz, otherwise known as the ‘United Nations of Graffiti’ was a Long Island warehouse that evolved into a ‘Mecca of the Aerosol Art world’ for high-end works by internationally recognised graffiti artists. With its own curator, Jonathan Cohen (the leading plaintiff in the case), 5Pointz became a major tourist attraction, mentioned in over 150 guide books and used for fashion shoots, films and music videos. However in late 2013 the property owner, Gerald Wolkoff, obtained approval from the New York City Council to demolish the complex and replace it with apartment complexes and low income housing. Cohen, along with a number of other artists, sought a permanent injunction to prevent Wolkoff from going through with the demolition and redevelopment of 5Pointz.
In seeking their injunction, the plaintiffs sought to enforce the moral rights provisions of the federal Visual Artists Rights Act 1990 (“VARA”) which applies to a relatively narrow subset of visual art. VARA provides, on terms comparable to the Australian provisions above, that the author of a work of visual art which is of “recognized stature” has the right to prevent the ‘distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation’ and to prevent the ‘destruction of a work of recognized stature.’ Despite expert witness testimony as to the intrinsic quality of the work, and that 5Pointz had become a major tourist attraction in its own right, the court in 5Pointz concluded that the work was not of the stature or reached the requisite recognition to come within the scope of VARA. Interestingly, the judgment (and expert witnesses) did recognise that works that are ephemeral can achieve recognised stature and made direct reference to Banksy as an artist who could satisfy the requirements of ‘recognized stature’. While the judge ‘was taken by the breadth and visual impact of 5Pointz’ and stated that ‘our souls owe a debt of gratitude to the plaintiffs for having brought the dusty walls of [the] defendants’ buildings to life’, he was not able to issue an injunction as the works did not fall within the scope of works protected by moral rights under VARA.
What differentiates the 5Pointz story from a typical case of illicit and unauthorised graffiti was that the property owner gave his express permission for the artists to use his building and allowed it to continue for a number of years, himself appointing Cohen as curator and even giving him keys to the building and office space – yet the artists still failed to obtain an injunction to satisfy their moral rights.
While moral rights protection is available to a broader scope of works in Australia than under VARA in the United States, a particularly difficult element of moral rights for graffiti artists in Australia are is the subjective requirement that any derogatory treatment be prejudicial to their ‘honour or reputation.’ The problem for street artists is that, unlike traditional paintings and drawings, the illicit medium of graffiti makes it a transient form of art. Graffiti artists expect their work to have a short-life span, either from removal by local councils or property owners or by ‘additions’ from other street artists. Indeed that fellow street artists will inevitably draw over your own work is an accepted practice of the art form, consideredpart of the artistic dialogue of graffiti. Arguably then the transient nature of the work could be said to be part of an artist’s honour or reputation. If modifications are foreseen and are evenexpected, how can it be said that these actions ‘prejudice’ an artist’s honour or reputation?
The argument is different when the person defacing the art is not a fellow artist, however the 5Pointz case may provide guidance in this context. The ‘general ephemeral nature’ of street art was a major issue in the 5Pointz decision, with the judge determining that ‘the transient nature of the plaintiffs’ works’ was ‘the ineluctable factor’ which precluded the works from falling within the scope of VARA’s moral rights provisions. In deciding this, the judge placed weight on the fact many of the works were painted after planning permission had been approved, that certain walls were designated ‘rotating walls’ to last only days or weeks and that Cohen knew that the building would come down at some point and the paintings subsequently destroyed when he agreed to become curator. As such the removal of the works (via the demolition of the complex) had no effect on their ‘honour and reputation.’
Further, while the ‘honour or reputation’ of an artist may be easier to establish in the case of a well-known artist such as Banksy, graffiti is an art form engaged in by a number of amateurs and in many cases, anonymously. How can an unknown artist, or one that purposely conceals their identity have an ‘honour and reputation’ to be prejudiced?
Another obstacle for a graffiti artist in Australia may be the defence of reasonableness of derogatory treatment provided for under section 195ASof the Copyright Act. In the case of graffiti artists there are clear contextual considerations that may make a property owner’s removal ‘reasonable in all the circumstances to subject the work to the treatment.’ Surely it is reasonable for an owner of private property to remove someone else’s tags from the surface of their own building, and in the case of a local council to exercise their express statutory rights to do so (see for example, the Graffiti Control Act 2008 (NSW)). In addition, it could be argued that removal is reasonable because the graffiti was made without authorisation and while committing a crime. Any derogatory treatment is likely to be less reasonable where the work is commissioned by the owner. Again, it is probably less ‘reasonable’ to remove the work of an artist like Banksy, which has considerable commercial and artistic value, than an unknown amateur.
Another available defence specifically deals with the situation of art placed on buildings. Where work is affixed to a building and that building is destroyed, changed or relocated, under section 195AT(2) of the Copyright Act, it is not an infringement of the authors right of integrity in respect of the work that is affixed to the building if the owner made reasonable inquiries to determine the identity and location of the author without success, or provided the artist with written notification. Locating and notifying graffiti artists is likely to be difficult, given that they generally work pseudonymously and are very often protective of their identities, and so property owners will often be able to rely on this defence.
Although graffiti artists do have some recourse to intellectual property rights in order to preserve their work, it is clear that they may have some difficulty enforcing these rights in Australia (and even more so in the United States). The court in 5Pointz pointed out that the artist’s work could ‘live on in other media’ and exhorted the collective to photograph all those they might wish to preserve so as to exploit their intellectual property in them.
While certainly true, these words were probably no consolation when the 5Pointz buildings were demolished in August 2014. Graffiti is a sub-culture where recognition and street credibility takes precedence over commercial exploitation, and so the judge may have been misguided when he observed that ‘surely the plaintiffs would gladly have accepted money from the defendants to acquire their works.’ It is ‘street’ art overall, and if the art can’t be found on the street, is it really the same thing?