FROM STREETS TO GALLERIES: COPYRIGHTABILITY OF GRAFFITI ARTWORK
Often associated with vandalism and destruction in the past, Graffiti has now found its place among High Art. It was once quoted by a street artist popularly known by his pseudo name Banksy, that
TV has made going to the theatre seem pointless,
Photography has pretty much killed painting,
but graffiti remains pretty much unspoiled by progress.
Terms like street art, graffiti and vandalism are commonly used to label such art forms. In India, unlike other parts of the world, graffiti is taking baby steps, however, in the era of internet and social media platforms, graffiti, with the art work being sold for millions, is big business, irrespective of its territorial location. The increase in commercial value of street art has given rise to the question as to whether they are eligible for copyright protection, which further leads to the issue of legality of these art forms.
Bringing street art under the ambit of copyright protection is a much-debated topic. For copyright protection, the work is required to be original and fixed on a tangible medium of expression. If graffiti complies with these minimum requirements, they become eligible for copyright protection. Though graffiti is usually expressed on surfaces belonging to third parties, copyright subsists with the author of the art work not with the owner of the physical embodiment of the work.
As regards the legality of graffiti, it is considered illegal when it is painted on a surface without the permission of the owner of the surface. Consent of the owner of the property upon which graffiti is placed plays an important role in determining the legality of the art form. Many famous street artists, like Banksy, Jean-Michel Basquiat and Keith Haring create their art form with the permission of the property owner. In other cases, graffiti, no matter how beautiful and artistic the work may be, will be termed as a criminal activity.
This status of illegality generally stuck upon graffiti is used as an argument against the grant of copyright protection and this theory is known as doctrine of unclean hands, which elucidates that no person shall benefit out of his violations. Nevertheless, the doctrine of unclean hands cannot be used to deny copyright protection. This proposition was recently confirmed by US Court of Appeals for the Second Circuit in the case of Castillo v. G&M Realty L.P, where it was observed by the Court that street art, which has blossomed into far more than spray-painted tags and quickly vanishing pieces painted by rebellious urbanites, is entitled to copyright protection.
Meanwhile, it is bizarre to note that, graffiti artists face challenges in enforcing copyright subsisting in their work. This is mainly because, graffiti artists lack rights over the physical embodiment of their work which prevents them from preserving their art work in the original condition against the wishes of the owner. Hence, it can be apprehended that, though the issue of eligibility of street art for copyright protection is settled to an extent, the issue of its enforcement is still a grey area.
 Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993)
 950 F.3d 155 (2d Cir. 2020)
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