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Protecting the rights of graffiti artists

Posted by Matt on October 18, 2013         Tagged with: copyright

From Clancco comes the story of a group of New York graffiti artists who are claiming the destruction of a building known as "Graffiti Mecca" to make room for condos would be a violation of their rights. The artists claim they have been painting there for years with the permission of the landowner, and that the site has become a well-visited tourist attraction which significantly enhances the reputation of the artists who exhibit there.

While the US Copyright Act does not explicitly recognize moral rights, artists do have similar protections under a patchwork of other statutes. The article doesn't specify, but in this instance, the artists are probably relying on the Visual Artists Rights Act. They claim the destruction of the building would be a "destruction, distortion, mutilation or modification" of their copyrighted works and would cause irreparable harm to their reputation.

There's limited case law on this. The most on point case seems to be English v. BFC&R East 11th Street LLC, discussed here. In that case, the court was reluctant to protect artwork that had been illegally placed on property without the consent of the property owner. That's not the case here: the artists are claiming that the artwork was placed with the full consent of the property owner. I have trouble believing that a court will prevent a private landowner from making use of their land, but the artist's claim may not be entirely without merit.

The Canadian Copyright Act does explicitly protect moral rights, including an artist's right not to not have their work "distorted, mutilated or otherwise modified". This right is only infringed if the distortion, mutilation or modification is to the prejudice of the author's reputation. An early Quebec case (Gnass v. Cité d'Alma, unreported) held that the destruction of a work would not prejudice the artist's reputation. As David Vaver puts it in his book Intellectual Property Law: "The artist's reputation could hardly suffer from a work that was out of sight and out of mind". However, since that case, the Copyright Act has been amended; now prejudice is deemed to occur whenever a painting is distorted, mutilated or modified. Again, I have a hard time believing a court would prevent a private landowner from making use of their land, but I could see a court finding that the landowner had some sort of duty to work with the artists to relocate or otherwise preserve the art, if possible.

In another hat tip to Clancco, this article from the Guardian raises some similar issues. It concerns efforts by governments to preserve the works of Banksy, probably the world's most famous graffiti artist. Banksy's murals can become significant sources of income, both for private landowners, surrounding businesses and local governments. But not all landowners want a Banksy on their property, regardless of its allure or cultural value, and deciding which artworks should be preserved and what the legal mechanisms for protecting them should look like is difficult.