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Draft:Street art and copyright

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The intersection of street art and copyright is an emerging field of law, coinciding with the rise in the acceptance of street art as a legitimate form of artistic expression. Artists such as Cornbread, Keith Haring, Banksy, and OSGEMEOS have brought street art into the mainstream art world, even exhibiting in traditional galleries and art shows. Public murals have risen in popularity and are increasingly funded by local governments as apart of community beautification projects.

A large issue within the application of copyright law to street art is the art's legality. Street art exists in both legal and illegal forms, depending on laws of the place in which it appears, which often factors in the location of the art, permission of the property owner, and its content or "artistic value".

Excerpt

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This section is an excerpt from Street art § Copyright.[edit]

In 2005, Banksy stated that "Copyright is for losers ©™".[1]

Under United States law, works of street art should be able to find copyright protection as long as they are legally installed and can fulfil two additional conditions; originality in the work, and that it is fixed in a tangible medium.[2] This copyright would then survive for the lifespan of the artist plus 70 years.[3] In case there is a collaboration between two artists, both would hold joint ownership in the copyright.[4] Street artists also hold moral rights in their work, independent of economic rights arising from copyright. These include the right to integrity and the right to attribution.[5] Recently, street art has started to gain recognition among art critics, and some major companies have found themselves in trouble for using this art without permission for advertising. In such a case, H&M, a fast fashion retailer used street art by Jason "Revok" Williams in an advertisement series.[6] In response to Williams' 'Cease and Desist' notice, however, H&M filed a lawsuit, alleging that since the work is a "product of criminal conduct", it cannot be protected by copyright. This view has been taken earlier too, in the cases of Villa v. Pearson Education[7] and Moschino and Jeremy Tierney.[8] In all three cases, before the judge could make a ruling on the issue of the illegality of the art, settlements were reached.[9] These companies typically settle out of court to avoid costly, time-consuming litigation.

When it comes to the question of the destruction of street art, the United States has applied the Visual Artists Right Act (VARA)[10] to introduce moral rights into copyright law. In English v. BFC & R East 11th Street LLC and Pollara v. Seymour, it was held that this Act was inapplicable to works of art placed illicitly. A distinction was also made between the removable and non-removable works, indicating that if a work can be removed trivially, it cannot be destroyed, irrespective of its legal status.[9] Another important factor considered by the court in the latter case was whether the artwork was "of a recognized stature".[9]

In a case where a group of artists was awarded $6.7 million, the judge held that the art was not made without permission of the owner of the building, and that an important factor was that the demolition was done ahead of the intended date, indicating willful thought.[11]

Background

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  • what is street art
  • graffiti, street art, line between

History

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  • story of street art
  • legal reaction to rise of street art

International/Multinational?

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EU?

United States

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United Kingdom

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References

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  1. ^ Banksy, Wall and Piece (2005) page 1
  2. ^ 17 U.S.C. § 102
  3. ^ 17 U.S. Code § 302
  4. ^ 17 U.S. Code § 201
  5. ^ "moral, adj.". OED Online. September 2011. Oxford University Press. 25 October 2011.
  6. ^ Voon, Claire (2018-03-15). "H&M Lawsuit Against Street Artist Could Change Copyright Law". Hyperallergic. Archived from the original on 6 October 2022. Retrieved 2022-10-16.
  7. ^ Villa, 2003 WL 22922178[full citation needed]
  8. ^ Jeremy Scott (20 April 2016). "Graffiti Cannot be Copyright Protected, Claims Moschino". The Fashion Law. Archived from the original on 1 March 2019. Retrieved 29 April 2019.
  9. ^ a b c "Unchartered Territory: Enforcing an Artist's Rights in Street Art". HHR Art Law. 2017-01-11. Archived from the original on 27 September 2020. Retrieved 2022-10-16.
  10. ^ 17 U.S.C. § 106A
  11. ^ Finn, Robin (2011-08-27). "Writing's on the Wall (Art Is, Too, for Now)". The New York Times. Archived from the original on 15 December 2018. Retrieved 2022-10-16.
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