Street Art: Is Copyright for “Losers©™”? – A COMPARATIVE PERSPECTIVE ON THE FRENCH AND AMERICAN LEGAL APPROACH TO STREET ART

Street Art: Is Copyright for “Losers©™”? – A COMPARATIVE PERSPECTIVE ON THE FRENCH AND AMERICAN LEGAL APPROACH TO STREET ART

11.1.2019

By Louise Carron

INTRODUCTION

“Copyright is for Losers©™” was spray-painted by the (in)famous street artist working under the name of Banksy. Street Art is the latest artistic movement that fascinates the masses. Graffiti was born millennia ago, with the earliest examples on the walls of the Lascaux Caves in France, in Pompeii or in Ancient Egypt. More recently, it stemmed from a desire to express oneself on the walls of urban neighborhoods, like New York in the 1970s. Graffiti art is usually confused with Street Art, but the “tag,” the artist’s signature, must be distinguished from the “graffiti,” a term originally given by authorities to encapsulate the vandalous act of writing on a wall. Today, “graffiti” often refers to unauthorized artworks that are word-based, and which encapsulate tags, throw-ups (bubble letter works, consisting of one color for the outline and another for the fill), stencils, sticker art, and wheat-paste art.

It is almost impossible to make a complete typology of Street Art, which from a legal perspective is defined as an art that is public, ephemeral, and free: “public,” because it is an art made by the people for the people, is inspired by local culture, and speaks to local communities; “ephemeral,” because the artists act in full knowledge and expectation that their works will be destroyed by the elements, public authorities or passersby; and “free,” because the artists do not expect any financial reward. Rather, they view their works as gifts to the public. Today, the visual aesthetics of Street Art interest not only gallery owners and auction houses, but also photographers, advertisers, publishers, and tourists. Conversely, against this rise of a new form of artistic expression, modern-day legal systems view Street Art as vandalism. Usually punished under criminal statutes, it is perceived as the infringement upon the monopoly granted to property owners, i.e., the sacrosanct right to peacefully use one’s property without the interference of others. For street artists, however, it is an act of creation.

“Against this backdrop, it is curious that modern-day graffiti has been so hastily condemned as vandalism when history has viewed it as a form of artistic expression and a part of society’s cultural capital.”¹ Street Art was and is still used as an avenue to express discontent, but it must thrive in an illegal context, which is evident from the numerous unauthorized reproductions or sale of graffiti and murals in books, marketing campaigns, films or even on clothes. Most infringers defend their actions with the argument that the artwork was illegally created and available in public spaces, and therefore the artist waived any kind of right as an author, making the piece free to reproduce. However, this is supported neither by copyright law nor moral rights theory in either France or the United States.

Although they have different approaches as to the reasons to award copyright protection to works of art, both legal systems grant the street artist with a variety of rights in works. France-a pioneer in terms of granting copyright protections to authors-perceives works as the extension or mirror of the author’s personality, under a “social” approach to protect the fruit of the artist’s labor.² By contrast, the United States views copyright as a way to “promote the Progress of Science and the useful Arts.”³ This distinction is visible when it comes to moral rights: the French social approach requires that the author and the work be protected simultaneously against attacks by others, in perpetuity, whereas the United States economic approach is purely utilitarian, to incentivize creation and investment.⁴ American visual artists had to wait until 1990 to be specifically awarded moral rights, albeit far more limited and less protective than the French Intellectual Property Code.⁵

Given the circumstances, it is not surprising that street artists have had difficulty seeking copyright protection for their works, considering the constant obstacles they face in theory and in practice, including others using their works for advertising purposes, painting over them, or removing the works to donate or sell them for profit. This article therefore analyzes Street Art as it is addressed today under French and United States laws in order to assess whether the creators of illegal works, i.e., those who create without the authorization of the property owner, can still claim rights over their artworks. Doctrinal debates also argue over the need for a sui generis status to fill this legal loophole: would this be possible and, if so, would it be advisable?

I. STREET ART’S UNCERTAIN LEGAL STATUS

The current legal context applicable to Street Art appears unsuitable. On the one hand, it is an act of destruction punishable by law; on the other hand, it is an act of creation protectable under copyright law.

A. AN ACT OF DESTRUCTION PUNISHABLE BY LAW

1. STREET ART AND CRIMINAL LAW

Most Street Art is still illegal in the eyes of the law, as it qualifies as vandalism, or the voluntary deterioration of public or private property-except in the case of an agreement between the owner of a building and an artist.

In France, article 322-1 of the Criminal Code specifically defines degradation of property as a misdemeanor. The extent of the damage and the medium are important elements of the infraction, along with aggravating circumstances when the property is a cultural property or historical site.⁶ As this is a question of fact, a French court may look at different factors to assess the damage, including the medium used by the artist, to lower the penalty, especially if the act is reversible and made to disappear.⁷ By contrast, New York law defines vandalism by the dollar amount of the damage caused to another’s property,⁸ which is an easier task for the court, as it only has to follow the thresholds provided by the law, without having to assess the extent of the damage to the property.

In the United States, the right to property is a fundamental right, and harm to private property is punished under state law. What distinguishes the different states is the way in which they seek to prevent Street Art: some cities, such as San Francisco, have a very strict no-graffiti policy,⁹ some restrict the sale of aerosols to minors, and others require the property owners to undertake the costs of erasing or taking down Street Art, regardless of whether they find aesthetic or commercial value to the works.

2. STREET ART AND PROPERTY LAW

In civil law, Street Art raises two issues. On the one hand, under general property law, a trespasser cannot reclaim a fixture attached to the property.¹⁰ Therefore, it seems that the street artist cannot be considered the owner of a physical work created on a medium owned by another. On the other hand, does the owner of the walls make that person the owner of the work as well? Therefore, who owns Street Art?¹¹ Despite philosophical differences concerning the types of property rights in France, where there is one absolute and undivided property right, and in the United States, where there is a “bundle” of property rights that can strain one piece of land,¹² there are three similar mechanisms to claim ownership of the piece: (a) abandonment, (b) gift, and (c) accession.

a. Abandonment. Abandoned property, as opposed to lost or mislaid property, is “voluntarily forsaken by its owner.”¹³ It belongs to the one who occupies it. Lost property is defined as property that has been “involuntarily parted with through neglect, carelessness, or inadvertence,”¹⁴ and still belongs to the owner. A piece of Street Art cannot be classified as lost, because the artist voluntarily created it on another’s property and left it there in full awareness of his or her actions. As defined in American law, abandonment requires a unilateral intent to transfer the property to an indifferent recipient.¹⁵ Such intent cannot be inferred from the work itself, and the finder will have to prove that the artist effectively intended to abandon the work and never reclaim it.¹⁶ It should also be noted that “mere nonuse or lapse of time does not, in itself, constitute abandonment.”¹⁷

b. Inter vivos gift. Street Art may be classified as an inter vivos gift to the proprietor, or to the public. However, both French and American law require that the donor effectively delivers the gift to another living person, who then accepts it. ¹⁸ In the case of Street Art, aside from works created by commission or request, most pieces are created without a determined donee, and without the effective acceptance by the latter. Therefore, most Street Art cannot be treated as a gift.

c. Accession. The mechanism of accession is “the acquisition of title to personal property by its conversion into an entirely different thing by labor bestowed on it or by its incorporation into a union with other property.”¹⁹ In France, the theory of incorporation finds two applications: (1) when two movable things are attached, the degree of control over the whole depends on the degree of attachment;²⁰ (2) when a movable thing is attached to an immoveable thing (e.g. a building), the owner of the land becomes owner of the whole.²¹ By contrast, American law does not care about the medium where the property is affixed, rather, it focuses on the manner of fixation. If the accessory cannot be “identified and severed without injury to the original property,”²² the owner of the principal becomes the owner of the whole. Applied to Street Art, accession is the mechanism most likely to favor the owner of the property onto which the piece was affixed. This was adopted in the British case of The Creative Foundation v. Dreamland Leisure Ltd. to say that “Art Buff,” a piece by Banksy, belonged to the landlord, and not the tenant of the building, the latter of whom had removed a section of the wall on which the mural was painted and arranged for it to be shipped to New York to be sold.²³

However, very few street artists assert property of the physical work, because it is created for the community or the public. Others circumvent the problem by using methods that prevent the work from being “affixed” to another’s property: in particular, Reverse Graffiti or “clean-tagging” is a technique where the artist removes dirt from a wall or from the ground to create something without using paint or paste. Nonetheless, artists may also claim the intellectual property in their works.

B. AN ACT OF CREATION: THE COPYRIGHTABILITY OF STREET ART

Comparing the conditions for copyright protection in France and the United States reveals that Street Art should be eligible in copyright protection. Since the harmonization started by the Berne Convention,²⁴ substantial conditions require the work or “oeuvre” to be (1) original and (2) fixed. In both France and the United States, copyright is affixed to the work from the point of creation without any formalities required,²⁵ but in the U.S. it must be registered with the Copyright Office before the copyright owner can bring a lawsuit and be entitled to statutory damages and legal fees.²⁶ This is one element that distinguishes France and the United States, in that American artists face extra steps before being entitled to enforce their rights.

1. Original Works
Originality, although mentioned in the law, is a notion defined by the courts in both France and the United States.²⁷ In France, it traditionally means that the work carries the personality of the author. In the United States, originality “is a very low bar for the author to hurdle.”²⁸ “Original” is understood as originating from the author, as an independent creation, i.e., not copied, which presents a minimal degree of creativity.²⁹ As applied to the visual arts, originality requires that the work depict more than the stereotypes of an artistic genre-at least according to France case law.³⁰ This is a factual matter: some simple “tags” may not be original enough, especially when they only consist of one word or surname, but the line is fairly easy to cross.

2. Fixed works
A work is fixed when it is more than a simple idea. ³¹ It must exist in a tangible medium of expression so as to be perceived, reproduced, or communicated. The ephemeral aspect of Street Art has no impact on its copyrightability: as long as it is affixed to a wall or any other medium, this is enough to be “fixed” in the copyright sense. We can compare the Ninth Circuit case where a garden was not considered to be a fixed tangible medium,³² as opposed to the 5Pointz case, where more than the 40 pieces were protected even though they were not intended to last, as most were meant to be covered by other artists in the future. As they existed in a “more than a transient” medium, however, they were not ephemeral.³³ This is a factual question that rests within the power of the court, which will ultimately assess the artistic medium used by the artists.

3. Illegality
Not all Street Art can qualify as “works,” but for those that do, the plain text of the law does not make the legality of the creation as a pre-requisite for copyright protection. It is noteworthy that, unlike trademarks,³⁴ copyright in France and the United States are not preceded by illegality or immorality. Under the doctrine of ex turpi causa non oritur actio  (no action arises out of an immoral act), courts might be reluctant to award copyright protection to pieces resulting from vandalism, because the artist acted with the mens rea for the mischief. However, in 1999 the French criminal court held that a pornographic film fell under the scope of copyright protection;³⁵  similar cases were heard in the Fifth and Ninth Circuits of the United States. It would seem logical to apply the same rationale to Street Art: where, from the point of view of mores, pornography is an indecent practice, Street Art may be perceived as similarly unlawful. Nonetheless, those who engage in it may find it proper, and the illegality or immorality of the performance should not prevent them from claiming copyright protection. ³⁶ Recent cases revolving around Street Art accentuate the legal void without addressing it. Thus, the issue arises whether a unique status for Street Art should and could be implemented.

II. PROS AND CONS OF CREATING A SPECIFIC STATUS FOR STREET ART

What makes this void so complicated to fill? “Unfortunately, art and artists have no special prerogatives from the perspective of law and law enforcement, which emanates from that portion of social consciousness that for the most part is insensible to aesthetic values.“³⁷

Art and law are often viewed as incompatible: one celebrates creativity, the rebellious act, revolution, whereas the other prefers that which fits into predetermined definitions, which respects the rules and conventions.³⁸ Art philosophers observe a recent phenomenon under the name of “artification,” the process by which “people do or make things that gradually come to be defined as works of art.”³⁹ Similarly, Street Art evolved into a socially acceptable, critically acclaimed, and attractive leisure: street artists want to be famous, collectors want to own a Banksy, individuals want to discover new pieces. Given this recent acclaim, we are confronted with whether legal thinkers could and should work on the creation of a sui generis status for Street Art.

A. PROS: THE IMPOSSIBLE EXERCISE OF COPYRIGHT IN STREET ART

If a work of Street Art is found to be original and fixed, the street artist could claim rights in his or her works, which would limit the physical property owner in the use of the property, akin to an easement imposed by law. The exercise of such rights is hindered by factual complications, which only accentuates the need for a legal framework. This section will be devoted to laying out why Street Art should be awarded a specific protection.

1. Street Artists’ Rights in Theory

In theory, street artists are awarded two kinds of rights that the artist can assert: (a) patrimonial (or economic) rights and (b) moral rights.

a. Patrimonial rights. Patrimonial rights over an original work of authorship include the reproduction⁴⁰ and distribution rights.⁴¹

Street artists have the right to authorize the reproduction of their works. Artists are often appreciative when their works are photographed by passersby and amateurs, but not in cases of commercial appropriation.

The distribution right may be relevant for those whose works are stolen and sold on the art market, like Banksy. The right gives the author the prerogative to decide if and how his or her work should enter the market. “Illegal” Street Art is not made to be sold, therefore those who steal works and sell them infringe upon the author’s distribution right. Additionally, in Common Law countries, the sale of stolen property is void ab initio;⁴² this is not the case in France, where only the buyer can choose to rescind the sale.⁴³

A special mention to the droit de suite should be made here. The right to resale royalties originated as a purely French notion,⁴⁴ which then became a European right,⁴⁵ but not one recognized under federal protection in the U.S. It grants the artist with the right to a percentage of the proceeds of the resale of his or her work on the art market. Until recently, California was the only state with a similar right,⁴⁶ but the Ninth Circuit basically reduced it to nothing in July 2018.⁴⁷ As applied to Street Art, which represents a growing part of the art market,⁴⁸ this means that street artists cannot claim any royalties when their art is taken down from their original locations and subsequently sold in the U.S. Although bad for artists, this is beneficial to dealers and auction houses.

b. Moral rights. French droit moraux are inherent to the status of author and last in perpetuity; in the United States, the federal Visual Artists’ Rights Act (VARA) awards some moral rights to visual artists, which are far more limited in time and in scope.⁴⁹

They first include the right of attribution or authorship, which allows the author to claim the paternity of a work, to use a pseudonym, or to remain anonymous.⁵⁰ Street artists can invoke such a right whenever anybody reproduces or reuses the work. In the United States, it also includes the right to refuse to be associated with the work when it has been modified or mutilated in a manner prejudicial to the author’s honor or reputation.⁵¹

Another moral right is the right of integrity, i.e., the right against destruction of one’s work.⁵² In the United States, there is an additional condition: the work must achieve the status of “work of recognized stature,” which is a question of facts, testimonies, and perception by the community of artists, professionals, and connoisseurs. In this case, the artist must be given a 90-day notice prior to the destruction of his or her work.⁵³ It should be noted that modification of a visual work of art through the passage of time or the inherent nature of the material is not sufficient to claim the right of integrity: applied to Street Art, which is supposed to be ephemeral, only a willful, deliberate conduct to distort, mutilate or otherwise modify the piece would be actionable. The 5Pointz case recently clarified the scope of this right as applied to Street Art: the property owner of a building that was turned into a gigantic “Street Art Mecca” in Queens, New York, had whitewashed the structure without proper prior notice to the artists, who had been allowed to use the walls as a medium for 20 years. The artists claimed that the white washing was willful and deliberate. The federal court for the Southern District of New York awarded the artists $6.5 million in statutory damages, and in relying on experts, and deciding that despite their temporary aspect, ruled that 45 out of 49 works had become works of recognized stature, which is currently on appeal.⁵⁴ Although these were authorized and curated works, this was a great win for street artists, whose art is finally becoming recognized as such.⁵⁵ However, this decision may discourage property owners to lend walls to the artistic community, in fear that they may never regain full ownership, which was the artists’ claim in the 5Pointz case.

2. Street Artists’ Rights in Practice

In reality, however, street artists are facing complications to claim copyright in their works through the framework mentioned above.

a. Practical complications. This is first due to a lack of laws and cases directly applicable to their situation. Many cases are settled, and artists are not always capable of going before a judge to claim their rights. In a case against H&M, a Los Angeles street artist tagging under the name of Revok sought to prevent the fast-fashion giant from using one of his works in Brooklyn, New York as a background for an online marketing campaign, to which H&M responded with a lawsuit.⁵⁶ It argued that the artist acted with full awareness of its illegality, and therefore waived any right in his work. After the outrage from the artistic community, the case ended with an apology from H&M’s CEO. Other artists constantly face such problems, but do not have the financial or material resources to bring the case before a court. Instead, they often utilize social media as a platform for their causes and rely especially on help from the artistic community to respond first. Furthermore, by going before a judge, they risk being sued for vandalism, malicious mischief or trespass, and may also have to reveal their real identities.

b. Legal complications. Second, moral rights are not necessarily adapted to Street Art: the right of integrity implies that the artist is allowed to take down his or her work before it is destroyed. However, what if the art cannot be removed without damage? This was invoked by the owner of 5Pointz, and it could have been resolved in his favor had he been more respectful of the artists. In English v. BFC,⁵⁷ the court refused to prevent the destruction of a community garden where street artists had illegally created a mural. The artists sought to invoke the right of integrity, but the court declined to create a precedent where unsanctioned Street Art could block the destruction of the property to which it is affixed. However, the court later narrowed the rule to works that cannot be removed without damage.⁵⁸ Removability will depend on the technique used by the artist; in any case, VARA does not afford an artist with the right to “insist that his art be preserved or maintained in its original location or context.”⁵⁹ In France, this question has never been clearly addressed.

In view of the above, French and American artists have very few legal protections against theft, destruction, or misappropriation of their works. However, there is another argument to be made that Street Art also should not be confined within the rigid boundaries of the law.

B. CONS: THE INSTITUTIONALIZATION OF STREET ART

Taking a step back to look at the bigger picture, the question rises as to whether Street Art should be granted a sui generis protection. For example, Street Art may already fall within the scope of freedom of speech and institutionalizing the movement may not be sensible.

1. Street Art and Freedom of Artistic Expression
Freedom of speech was consecrated in Europe, France, and the United States, and all proclaim the principle that those who create and speak are participating in the marketplace of ideas that is indispensable to a democratic society.⁶⁰ As long as Street Art falls within the boundaries of accepted speech, it should be protected. Unfortunately, most restrictions around Street Art are content-neutral and subject to intermediate scrutiny, in that they restrict the time, place, and manner of expression; in Members of City Council v. Taxpayers,⁶¹ the United-States Supreme Court ruled that a local ordinance forbidding commercial street signs on public streets was substantially related to the city’s interest in avoiding visual clutter. As applied to Street Art, there might be enough to argue that private owners have the right to keep uncommissioned art on their property, and that the Supreme Court ruling conflicts with such right.⁶²   In practice, state laws restricting Street Art are sometimes viewed as overly broad and “create an impediment to artistic freedoms and unduly criminally punishes the artist.“⁶³ In France, freedom of speech focuses on the message within: a graffiti or tag with an abusive, defamatory, xenophobic or pornographic content is punishable by criminal law;⁶⁴ other offenses that require a writing may be constituted by a graffiti, including threats,⁶⁵ insults⁶⁶ or incitement to hate.⁶⁷

2. Judicialization of Street Art
Defined as “the ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies,”⁶⁸ this author believes that the judicialization of Street Art should not be encouraged. Defenders of the “Negative Space” theory of Intellectual Property (IP) believe that Street Art is thriving in a world with limited norms and should stay that way.⁶⁹ In the words of Elizabeth Rosenblatt, a low-IP treatment is particularly adapted to an activity “(1) when creation is driven by rewards not reliant on exclusivity; (2) when exclusivity would harm further creation; (3) when there is high public or creator interest in free access without harm to creativity; and (4) when creators prefer to reinvest scarce resources in further creation than in protection or enforcement of intellectual property, i.e., when there is a higher cost of protecting or enforcing exclusivity than benefit to pursuing infringers.”⁷⁰ Street Art is well suited in such a low-IP environment, in view of its public and non-exclusive aspects.

Street Art is first and foremost an ephemeral creation. Encouraging the protection of a work bound to disappear seems illogical. Artists act in full knowledge of the risks of its evaporation; those who want to save graffiti from destruction, as admirable their intention might be, is negating the work’s essence and the artist’s intentions⁷¹ While some artists may want their art to be preserved for future generations, all of them act in full awareness that the work will probably be destroyed. As it is quasi-impossible to assume all street artists’ intentions, it should not be necessarily inferred that they wish that their art end up in a gallery, museum or private collection.

Second, and stemming from the first point, Street Art is supposed to be a public creation. However, we can now observe a shift from the streets to the galleries; uncommissioned pieces are sometimes found at auction or in museums, and a growing number of street artists are organizing their own exhibits.⁷²  Creating a sui generis status would only accelerate the institutionalization of the movement, which is denounced by a majority of artists and purists. Some would rather destroy their works than let the public capitalize on them.⁷³ Street Art is highly site-specific, akin to Richard Serra’s Tilted Arc:⁷⁴ the artist chose an exact location because passersby would be able to see the piece and interact with it. Confining Street Art to legal checkboxes and behind doors should not be encouraged. It is art made for the streets, not for the walls of a museum.

Third, the Street Art community has been acting outside the traditional boundaries of the law: the judicialization of Street Art could annihilate the thrill and dangerousness of the creative process. While some artists happily work on commission, thereby receiving pay for their works and acting within the law, others would rather destroy their works than see them appear on the traditional art market. In less drastic methods, some refuse to sign or authenticate their works, which makes it harder for museums or galleries to accept them. Such is the case for Pest Control, Banksy’s certification board, which refuses to authenticate Street Art pieces because the art was not created for commercial purposes. The community of street artists is a self-regulated community, with real collaboration among members. Art is a world where inspiration comes from others; a strict legal regime would only impede artistic expression and the freedom to create.

CONCLUSION

In spite of possible sanctions, Street Art is stronger than ever; it disrupts preconceived aesthetic norms and wreaks havoc on the straightforward application of the law. “Economic incentives are not necessary to motivate the creation […]. The evidence of this is on the streets, where street art continues to flourish in a norms-based, low-IP world.”⁷⁵ Artists use new ways of creating and maintaining their reputation, and of protecting their rights, mainly through social networks, such as Instagram.

The aforementioned issues regarding Street Art underline the need for adapting the law to contemporary social changes and artistic value, but it is not clear that the creation of a specific status for Street Art could solve those problems. A specific status is likely to assess the aesthetic merits of a creation and of the artist. However, this assessment should not be the role of a court. In 5Pointz  the court relied on the testimonies of members of the artistic community and experts to determine whether each work has attained the necessary “recognized stature” under VARA. However, it must be careful not to evaluate the artistic value of the work.

The legal vacuum surrounding Street Art may be filled by distinguishing between intrinsic and extrinsic legality: if the message of the work is illegal, e.g., inciting to violence or hate, pornographic, or defamatory, this could be an obstacle to copyright; however, the fact that it is created illegally should not prevent the work from being protected, but would grant the artist with restricted rights in his or her work. Another approach could be the categorization of Street Art as an artistic collective good, where no one could keep it or sell it, and over which the author would not have any right (including copyright). This, however, would deprive the artist of any right in his or her intellectual creation, which would therefore set Street Art outside the scope of copyrightability. In any circumstance, it is essential to protect freedom of artistic expression, and in particular to give property owners the choice to keep the Street Art piece. Whether France and the United States are ready to implement such individualistic rights will depend upon the willingness of street artists and property owners to cooperate.

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