Graffiti, Bansky & New York - The Legal Geography of Copyright in Urban Spaces

Do we find that in certain spaces, copyright law does not work? Or is neither valuable nor relevant at all to the author of the original work?

Introduction

The Goss-IPgirl has been fascinated by the anonymous British pseudo street artist Bansky’s, one month graffiti spree in New York, (last month), which raised some very interesting questions, in regards to the value of copyright law for art in urban spaces.

Street Art and the law

With an international reputation as a “quality vandal,” and one who uses public “canvases” for social commentary, the Goss-IPgirl wanted to address the legalities of Graffiti art and whether illegal Graffiti art warrants copyright protection, and the scope of ownership offered by law for a Graffiti artist in respect of their work?

Copyright protection exists in "original works of authorship fixed in a tangible form. With regard to Graffiti - copyright law places no judgment on the art, the motivation behind the art, or the form in which the art takes.  So long as the work involved meets the threshold for originality (and is above de minimus/written tags may fall outside this test); ownership over the copyright to graffiti will exist, regardless of its legality.

But who owns the physical copy?

For the Goss-IPgirl, the answer to this arose when a group of young people on the east side of New York City, Brooklyn started charging people up to $20 that were from outside their community, to view the famous street artist Banksy’s tenth mural, in a neighborhood where the general 'feeling is that nobody cares..and now they have something of value the should benefit.' The piece in question (shown below) of a beaver stenciled onto a wall, was covered up with a cardboard box in order to prevent individuals who did not pay up, from seeing it. 

Copyright Ownership Vs Physical Ownership & Cultural Intermediation?

Despite the men not owning the intellectual property to the work, property laws regulate the space where it occurs, and thus, the physical ownership to that creativity.  As one commentator in an interesting article made the point, ‘Museums, by and large, don’t own the copyrights in the works they exhibit, yet nothing prevents them from charging a fee to those who want to see them.’

The sale of "Slave Labour,” which depicts a young boy hunched at a sewing machine stitching Union Jack bunting, seems to highlight this point entirely. The stencil first appeared last June in London, on the wall of Poundland discount shop in the Wood Green neighborhood. In February 2013, the mural was stripped from the wall, and a few days later appeared at Fine Art Auctions in Miami, with a list price of $500,000 to $700,000, later selling in a private auction for $1.1 million.

Copyright law grants certain economic and non-economic rights to the creators of original literary and artistic works, including the right to reproduce their work, but in relationship to property law, copyright does seem to reach a brick wall, especially when a Graffiti artist uses private or public property as canvass for their work. The justifications for copyright protection suggest that copyright protection offers an incentive to produce work. Yet, interestingly despite a lack of enforcement of IP rights the sub-culture of Graffiti art such as Banskys – seems to flourish largely without reference to copyright law. In a rare interview released by the British artist in 2010, Bansky highlighted that "Graffiti's isn't meant to last for ever [he’d] prefer someone draws a moustache and glasses on one of [his] pieces than encase it in Perspex.”… “I've always been uncomfortable with the way galleries put things on a pedestal.” He said, “I think art should be a two-way conversation, not a lecture behind glass."

Commons approach - Lack of enforcement of IP Rights  & Graffiti  Vandalism

So what is the conversation for us stemming from Bansky’s month long residency in New York? If anything that physical property laws can act in conflict with intangible IP laws, especially when it comes to Graffiti art sprayed in public spaces. Which is often either painted over or removed by the original property owner. This tension is further exemplified by looking at vandalised graffiti work, (suffice to say the Goss-IPgirl still acutely notes that even though its artistic merits can't be denied, illegal graffiti is still in fact a form of vandalism) Bansky’s first Mural, titled "The street is in play," stencilled in classic Banksy style on a Manhattan wall, depicting two boys, one standing on the other's back and attempting to grab the spray can in a sign clearly  reading "graffiti is a crime," was tagged by other artists within hours – before being painted over and erased entirely.  

(The Banksy's artwork "The street is in play" before and after being whited out)

Are IP rights relevant? But in copyright space does this not raise issues of ‘moral rights’ for damage to work? And does this right even exist for the street artist.

United States - Visual Artists Rights Act, 1990

In the US - through the Visual Artists Rights Act, 1990 (VARA), street artists like Bansky are able to rely on, the right of “integrity” of the work of art, which grants an artist “the right in [certain] circumstances . . . to  prevent any intentional distortion, mutilation, or other modification of  that work which would be prejudicial to his or her honor or reputation,” and to prevent any destruction of the work...provided the work is of “recognized stature.” (In the UK, the equivalent would be Article 80, the right to object to derogatory treatment of work.)

However the rights afforded by the Visual Artists Rights Act are “subject to the limitations which are expressly set forth in section 113(d), accordingly, legal graffiti artists are protected by VARA, subject to the § 113(d) limitations. In particular, illegality precludes VARA protection, so unless Bansky was commissioned to do the work, which seems very unlikely, seeing that, no one actually knows his real identity, and the elusive street artist has never actually been seen. Illegal graffiti artist, Bansky, is afforded no protection for his work under VARA.