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.