Protecting Graffiti Artists

    The definition of the boundaries of art, and the privileges of the people who produce ever-evolving art forms, have historically been contentious issues among the general public, however, household and classroom debates typically remained outside of the realm of copyrights. A recent article from the National Post spoke of a case where a photographer of graffiti works was pressured into cancelling a show that displayed these photographs due to concerns that the copyrights of the graffiti artists were being infringed upon. It was clear that the photos were reproductions of the graffiti, which if treated as copyrighted art, cannot be reproduced without permission of the artist. However, this raises the issue of whether creators of such graffiti should be protected with the same rights as similar artists who create murals on their own property.
    Public areas can be viewed as a commons that should be free for all to enjoy as the government sees fit. When an individual chooses to graffiti an image onto a public space, they are in some respects annexing the enjoyment of that space by claiming additional rights to it over those held by the rest of the public. The art cannot be practically separated from the area on which it was produced. One may have been able to take a photograph of a particular space before, and this enjoyment, no matter how little value it may be to some, can then be easily lost by way of another person simply spray-painting something on top. It must be noted that such a situation is different from one in which the art was permitted by the government since it would then be a legitimate authority that was limiting the use of the commons for everyone.
    It is understood that various rights come into existence and are given to artists when they create their works of art, but if that act of creation is done against certain bylaws and can devolve into a defacement of property, should the same respect for these works still apply? In some senses, this is similar to the intuitively absurd concept of awarding damages to a thief who injures himself while in the process of stealing something from a property that he was not invited to, since the thief has created a privilege for himself by means of an unlawful act.
    Enforcing copyrights for art created in a public area by an individual who so created it without consent from, and usually against the wishes of, the rightful administrator of that area also raises additional problems of application in certain situations. For example, who would hold the copyrights of a work of graffiti that was created by one artist and was then altered by another? How are we to respect the moral right of the first artist to not have his work distorted without his consent while at the same time respecting the rights of the second artist who has laid claim to that area in the exact same way as the first? By withholding copyrights in cases where the work of art was unauthorized and created in a public area, such issues are more easily resolved, and there would also be no reward of extra privileges for actions that were done contrary to the public good.
  1. I agree with George that graffiti are a type of art that raises many issues around copyright protection and infringement. I will take his proposition even further and argue that the law, in fact, prohibits copyright protection for graffiti. This is because, according to the legal doctrine of ‘dirty hands’, a person will be prevented from recovering damages if he or she suffers the loss while acting unlawfully. In this respect, the law tries to prevent the absurd situation George describes, namely that a thief is allowed to recover damages for the injuries he suffers while stealing. Given that the artist has placed the graffiti unlawfully on another person’s property, he or she should be legally deprived of the opportunity to recover any damages in relation to that art.

  2. Two very interesting posts. I’m not sure the “clean hands” argument works quite as cleanly as suggested. After all, US and Canadian case law has accepted copyright in pornography (& allowed the pornographer to enjoin the infringing work, although not given much if any damages), and the better view is that an unauthorized translator still has copyright in his work, although he may be stopped by the copyright owner of the source work. And if, by mistake, I sculpt something in bronze that I wrongly think I own, does the real bronze owner own my sculpture and the copyright? Is everyone free to copy it? I doubt it. Should it make any difference if I stole the bronze first? The sculptor is liable in tort and criminal law but should he also be penalized by divesting him of his copyright?

    There is an interesting post on this subject on

    Here also is an extract from something I wrote a few years ago in “Abridgments and Abstracts: Copyright Implications” [1995] E.I.P.R. 225 (omitting footnotes). Perhaps what is true of the unauthorized abridgment may have some relevance for the position of the graffiti artist?

    ‘Commonwealth copyright laws typically protect all original work; there is no qualification that the work must be “lawful” or “authorized”. The inference is, as a British judge has perceptively noted, that an original work may be protected even if it infringes another’s copyright. This was suggested as long ago as 1868, where Kelly C.B. said obiter — the case involved an authorized work — that an unauthorized arrangement of a musical work, though infringing copyright, would “certainly” have copyright in England. US law differs: protection is explictily denied to derivative works to the extent preexisting material has been used “unlawfully.”
    ‘The history of the Berne convention supports the validity of Kelly’s 1868 dictum today. The first Berne convention in 1886, in protecting one sort of derivative work — translations — explicitly protected only “lawful” (i.e., “authorized”) versions. By the time of the 1908 revision of Berne, matters had progressed. Not only were other types of derivative works now protected — including “adaptations” and “other reproductions in an altered form” (which would include abridgments) — but the reference to “lawful” was now deleted. Instead, all original derivative works were protected “without prejudice to the rights of the author of the original work.” The intent, unchanged in later versions of the convention, was plainly to give the maker of an unauthorized derivative work recourse against copiers, while preserving the source work owner’s power to stop both versions. US law, in denying copyright to an unauthorized abridgment, therefore offends the convention.
    ‘The point was fully debated in the UK in evidence taken before the copyright committee chaired by Lord Gorell. In its report in 1909, the committee concluded it was “doubtful” under UK law whether unauthorized derivative works were protected. The committee, over two dissents, recommended UK law to be amended to conform with the Berne convention. Accordingly, like the convention, the Copyright Act 1911 and the later Acts of 1956 and 1988 said nothing about a work’s having to be authorized or lawful before having protection. Commonwealth statutes modelled on the 1911 and 1956 Acts maintained this silence.
    ‘Judicial opinion in the Commonwealth is nevertheless conflicting, partly because courts have not referred to the Berne convention or the Gorell committee report. This should be corrected now that Commonwealth courts accept a wider range of material to assist in their interpretation of legislation. The result will be to allow an unauthorized abridgment to have its own copyright. The abridger should get the usual remedies in respect of the copying. He can stop even the copyright owner of the original work from using the abridgment, but this will be cold comfort since the latter can equally enjoin the abridgment.’

  3. Interesting stuff. I came across this exact issue this summer at ALAS. My understanding of art in public places is that it can be reproduced either by drawing, painting, photography or sculpture.
    In order to fit the criteria for a ‘public’ work the art piece must be permanently installed. By its very nature graffiti is ever-changing, with artists continuously painting over top of one another’s work. Though the paint is put directly onto the wall and the artist’s intention is that the graffiti be permanent, its permanence seems at question.
    The other requirement of course is that it be in a public place. Places like graffiti alley off of Queen Street West in Toronto are seemingly public, though the walls on which the graffiti is painted are privately owned.
    Very tricky.

  4. This is a great discussion thread. I believe that Megan is referring to section 32.2(1)(b) of the Copyright Act. It creates certain narrow exceptions to infringement (permitted acts) for specific works situated permanently in public places. For example, it is not an infringement of copyright for any person to reproduce in a photograph a sculpture permanently situated in a public place.

    The exception appears to be quite narrow and only applies to architectural works, sculptures and works of “artistic craftsmanship”. Could graffiti be properly interpreted as a work of “artistic craftsmanship” that falls within this exception?

    It seems that at least part of the aim of this provision was to give a certain level of freedom to photographers (or other artists) who are reasonably making use of a public space. Where should one draw the line? Does it make sense to stop at architectural works and sculptures?

  5. I don’t think graffiti qualify as works of artistic craftsmanship. That term, according to one text, is usually reserved for durable products such as “Chippendale chairs, Cellini candelabra, Coventry Cathedral tapestry, stained-glass windows, hand-painted tiles, and wrought-iron gate work. Clothing, boats, coloured rods for teaching children mathematics, and mass-produced toys have not qualified.”
    Two other statutory arguments suggest themselves. If I wish to photograph the building on which the graffiti appear, the graffiti artist has no complaint because his work is only “incidentally and not deliberately” included: s. 30.7 of the Act. That argument doesn’t work, of course, if my main object is to photograph the graffiti. The other possibility is fair dealing – if I’m photographing the work for the purpose of reviewing or criticizing it, or as part of a news report, and the way I deal with the work is then fair.
    Another possibility is to say that a graffiti artist, by choosing someone else’s property or a public space that to work on, is by that very act abandoning any claim to copyright or moral rights he may have. Can he complain if someone else destroys his work? (Recall Joyce Carey’s “The Horse’s Mouth”, and the equally wonderful film of the same title starring Alec Guinness.) Some say that copyright can never be abandoned but I wonder if this may not be just such a case of abandonment by conduct?
    Rex’s comment points up the drafting gap in s. 32.2(1)(b). There seems no policy difference in photographing any form of public art, be it a building, sculpture, fountain or graffito. One more job for the legislator?

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