By, Swati Singh
“Graffiti” is defined as an illicit public art and generally includes spray-painted murals, writings or drawings, usually produced without the property owner’s prior permission.[i] Complementarily, copyright has a fundamental concept to it. The World Intellectual Property Organization defines copyright as a legal term used to describe the rights that creators have over their literary and artistic works.[ii] In simpler terms, copyright is used to describe the original creative works of the mind. A graffiti being a drawing or painting in the form of spray-painted murals on any surface is an artistic creation of an individual, and hence falls under the meaning of copyright, which ought to be afforded due protection under the law. The legal status with respect to the protection of this form of art is yet not recognized in most countries, and the laws related to intellectual property rights do not entail any express provision for the protection of the same. In this backdrop, the nature of protection of the aforesaid has to be essentially inferred out of the presently laid down legal provisions pertaining to copyright.
AN OVERVIEW OF THE H&M CASE
Recent years have brought an increase in litigation, with suits being filed by graffiti artists who seek to defend their work from copyright infringement. The debate as to whether graffiti should be protected through copyright was reignited recently in 2018 when graffiti artist Jason “Revok” Williams spray-painted on a handball court in Brooklyn, which was later used by the Swedish multinational clothing-retail company ‘H&M’ in its ad campaign. Williams responded by sending a cease and desist letter to H&M for breach of copyright and unauthorized use of his artwork.[iii] The letter also stated that the ad is likely to cause people familiar with his work to believe that there is a relationship between the parties. Later, H&M filed a lawsuit asking the court to declare that Williams had no copyright to assert because his graffiti itself was a crime. In a letter sent to Williams and his lawyer, the company stated, “The entitlement to copyright protection is a privilege under federal law that does not extend to illegally created works.”[iv] They argued that illegal graffiti is trespass and vandalism therefore it can be exploited for commercial purposes. The rationale behind this was the “doctrine of unclean hands”.
DOCTRINE OF UNCLEAN HANDS
This doctrine believes that a plaintiff should not be offered a legal remedy and profit from it, if they have acted illegally unethically or in bad faith. Hence, according to this doctrine, if a graffiti is unauthorised, it can be subject to misappropriation. This led to a huge hue and cry among the community of street artists who believed that H&M’s position was overreaching and anti-artist. This led to H&M capitulating and withdrawing its proceeding.
This case led to an entire array of questions such as, “whether graffiti should be considered as art?”, “whether it should be subject to copyright protection?”, etc. For a work to be considered copyrightable, it needs to meet the following important criteria in the United States: it must be an “original work of authorship fixed in any tangible medium of expression.”[v] Graffiti, as a modicum of art, falls under these parameters. However, the contention of people who believe that graffiti does not qualify as art is that it is a work of criminal nature. But copyright will automatically come into existence if the aforementioned statutory requirement of copyrightable works is met. How a work was created is not a factor relevant to copyright law. Copyright to a work is denied only if the work does not fall in the realm of copyrightable works. This was further emphasized in the US, in the Fifth Circuit case of Mitchell Brothers Film Group v. Cinema Adult Theatre.[vi] Mitchell Bros. Film Group (“Mitchell”) exhibited an adult motion picture without permission on the premises of the Cinema Adult Theatre (“Cinema”).[vii] Mitchell, who was the owner of the copyright of the motion picture, brought a suit against Cinema for copyright infringement. Cinema alleged that the work was not copyrightable, stating that the content of the movie was obscene and therefore under the doctrine of unclean hands, the owners were barred from relief. However, the Court rejected Cinema’s argument, holding that the Copyright Act of the US does not allow the inference that copyright should not be allowed if the content is deemed obscene. The Court also ruled that the unclean hands doctrine cannot be applicable as the unethical behaviour was not related to the subject matter of the lawsuit. The Court further stated that as long as the material is an original work of authorship, it is not the Court’s place to judge the nature of the authorship even if it is obscene. This case illustrates the necessity to grant copyright to graffiti artists even if their work is of a criminal nature. Graffiti artists are subject to vandalism laws in some countries, wherein they are given criminal sanctions. Nonetheless, their work can still be granted copyright because vandalism does not preclude copyright protection.[viii] However, the issue still remains a divisive one. But in recent times, more and more graffiti artists have been able to successfully copyright their works.
THE WAY FORWARD
With a surge of information in the extant era of knowledge and technology, the need for the protection of intellectual capital is on the rise. The intellectual capital, accompanied by the rights thereto, needs to be safeguarded due to the escalation of its status to a valuable tradable commodity holding commercial significance. First and foremost, the need of the hour is to relook the status of graffiti as an art form by no longer considering it to be a work of vandalism or destruction, but an artistic creation of an individual created out of the mental and intellectual faculties of the creator. There should be a wider connotation of this art form, and notwithstanding any ills that it is capable of causing, the artistic liberty and freedom of an individual should be duly respected. The creativity of individuals should be encouraged for a healthy and deliberative world.
In reality, the art has already taken the form of a marketable commodity, which is profusely used by the clothing businesses for various purposes including designing and advertisingix This largely opens the scope of exploitation of propagators of the art form, who are not given adequate due for their efforts. This suggests that it is high time the legal status of graffiti as an art form be determined and established in order to afford the requisite copyright protection to the originators of the art, and subsequently, curbing its illegal utilisation in the commercial sphere.
[i] Juel Barnett, Is graffiti protected by copyright?, Int’l. L. Off. (Nov. 05, 2018), https://www.internationallawoffice.com/Newsletters/Intellectual-Property/South-Africa/KISCH-IP/Is-graffiti-protected-by-copyright.
[iii] Jenna Amatulli, People are boycotting H&M over alleged infringement of an artist’s graffiti, HuffPost (Mar. 15, 2018, 11:39 PM) https://www.huffingtonpost.in/entry/hm-boycott-graffiti-copyright-infringement_n_5aaa835ce4b045cd0a6f5083?ri18n=true.
[iv] Jake Woolf, H&M Tried (and Failed) to Steal Graffiti, GQ (Mar. 06. 2018), https://www.gq.com/story/hm-tried-and-failed-to-steal-graffiti.
[vi] Mitchell Brothers Film Group and Jartech, Inc. v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979)
[vii] Celia Lerman, Protecting Artistic Vandalism: Graffiti and Copyright law, 2(2) N.Y.U. Journal of Intell. Prop. & Ent. Law 295, 319-321 (2013).
ix Supra note 1.