NAVIGATION OF COPYRIGHT AND OWNERSHIP COMPLEXITIES IN STREET ART

INTRODUCTION

Mural paintings or street art is a kind of artwork performed by the artist on walls or flat surface. It is sometimes used as means to express creative freedom of the artist and deliver certain message to society be it political, environmental or social. Mural or street art can be protected under the Indian Copyright Act,1957. Section 13(1) provides that in order for the work to be qualified for copyright protection, it must be an ‘original artistic work’. Further, artistic work is defined under section 2(c) which includes paintings or other artistic craftsmanship works. One more essential feature as per 2018 Practice and Procedure Manual by Copyright Office is that such work must be in fixed and tangible form. Works of street arts like painting, graffiti etc. are generally performed on surface of walls of building, bridges etc. and can be considered to be in tangible form and thus subject to copyright protection. However, such works being in public domain, certain issues and challenges arise when it comes to providing copyright protection to such works.

Issue 1 – Balancing of rights of the original author of works and street artist

As the mural arts or street arts can be work of imagination of artist. But generally they are inspired or derived from the existing works. Therefore, there might be a situation of conflict of rights between works of original author and the street artist. The above issue can be understood in light of ‘DE MINIMUS DOCTRINE’. This doctrine is very useful in providing protection to street artist. It basically means that if a particular copyrighted material is being used but the use is very minimal or inconsequential that it would not infringe the rights of original author, then it will not come under the ambit of copyright Infringement.

For example, a street artist has painted a scenic picture on a wall but incorporated certain portion from original painting. If the use of the painting is minimal or very inconsequential, then the work of the street artist will not amount to copyright infringement

Issue 2- Balancing the right of property rights of owner and moral   of street artist.

Moral rights of the author are provided under section 57 of Indian Copyright Act. Moral rights include right of integrity and paternity. Thereby, these right allow the author of the work to claim attribution to their work and further if there is any mutilation, distortion etc. of the work, the author can have the right to claim relief. This right plays a vital role in case of street artist. As their works are mainly in public domain like wall paintings, graffiti etc. Since buildings, roads, bridges etc. are generally in control of the government or private owners. Therefore, they have right over whatever work is performed on their property.  There are high chances that these works can be altered or destroyed by local authorities or Private owners.  

Hence, the questions remain still unanswered as to what extent copyright law is efficient in enforcing the rights of the artist in such scenarios.

In one particular case, St Art India Foundation v Acko Gneral Insurance (2023) which highlighted the above 2 issues. In this copyright protection of mural titled ‘Humanity’ was in question. The claim of the plaintiff was that it was an artistic work covered under section 2(c) (i) of copyright Act. The argument of defendant was that since the work was in public and therefore the use of plaintiff’s mural in his advertisement should be covered under Section 52(1)(t) amounting to fair dealing. The court left the issue of fair dealing for future adjudication. However, commercial use of mural in advertisement violated the morals rights as it altered the original purpose of mural and defendant agreed to taken down his Instagram posts or other online advertisements incorporating mural.

Issue 3 – Anonymous and pseudonyms artist v Reproduction of their work by 3^rd party

Pseudonymous works can be artistic or literary creation, in which the author’s name is not disclosed. Section 54(b) of the Copyright Act,1957, states that in case author identity is not is not revealed, then publisher will be considered as owner of the copyrighted work. In such cases copyright protection is granted for period of 60 years from date of publishing. Sometimes, there are certain scenarios where artist does not want to reveal their identities. Under copyright law, such authors of work are known as anonymous or pseudonyms.  But at the same time protection must also be given to the work of these artist. The issue arises when some 3^rd party reproduces the work of these authors.

In a case, Banksy, a very famous artist who is popularly known for his works such as ‘love is in the air- a flower thrower’ or ‘Laughing all the way’. Banksy, original identity is hidden and therefore an issue arose when a 3^rd party reproduced Banksy works without his authorization. Still EUIPO denied copyright protection to Banksy above works stating the due to nature of street art. It said that these works are in public domain and therefore it is likely to be reduced and photographed. Therefore, due to anonymous nature of Banksy, seeking copyright protection in such works became more difficult.

CONCLUSION

The nature of street art or graffiti or mural paintings is a creative art- form which depicts and enhance the environment around us. The enforcement of copyright law becomes difficult in case of street art as the work always remain in public domain. Each case has to be subjectively interpreted by the courts, seeing the ambiguities in the law. The lack of specific legislation addressing street art and limitations of copyright law has made the situation more complex.