Graffiti had a negative association with it; it was a part of vandalism and hooliganism. However, over time, the social perception of it has changed, and now they are well-respected and considered an art form through street art. Government and organizations even commission artists to paint the walls. Today, it is a form of public art that represents the freedom of artists and thinkers. It aims to transform a public space aesthetically. It is now being recognized as a distinctive art form.
There has been a constant increase in the number of street artists in India, namely, Yantra and Leena Kejriwal, and internationally there is ever-so-famous Banksy. Often, there is a question of the validity of copyrighted art made illegally, without permission on others’ property, and the validity of the copyright of art made in public spaces.
Laws around the world
A short answer is yes, ‘original’ street art can be protected. The requirement for art to be protected in the US or America is that it should be in tangible form. (which excludes makeup). Thus, original graffiti to be reproduced in books, clothes, and advertisements needs the artist’s permission. Even capturing a substantial part of the artwork is considered reproduction under copyright law.
There can be certain limitations when the artwork is permanently located in public spaces—laws on this all over Europe. In Spain, works permanently located in public spaces may be reproduced and distributed freely; in the UK, only sculptures, buildings, and craftwork can be reproduced freely, not graphic works, which extend to street art. The author’s exclusive rights in France are limited to architectural works and sculptures permanently placed on public roads.
Depending on the given factors, it is difficult to determine the artist’s right to protect their street art in public places.
Situation in India
The question is raised in India in the case of
St ART India India Foundation v. Acko General Insurance, when in February, Acko General used ‘Humanity’ (the contended mural) in its hoardings and online, in line with its advertisement campaign. The plaintiff asserted two primary rights connected to the artwork; they contended the mural is protected as an artwork under Section 2(c)(i) and Section 13(1)(a) of the Copyright Act, 1957. The artist asserted moral rights over the work under Section 57 of the Act.
The defendant proclaimed that using the said mural in their campaign was exempted as ‘fair dealing’ as given in Section 52(1)(t). Section 52(1)(t) explains that artistic work falling under Section 2(iii)(c) (defines creative work) does not lead to copyright infringement if the said work is permanently situated in a public place. However, the given provision does not talk about commercial use.
The plaintiff contended that the mural is not permanent but temporarily situated. They also argued that the mural is not covered by section 52(1)(t) since it is a painting under a separate category. However, the latter argument is questionable.
Moral Rights, as covered under Section 57, discuss the rights that remain with the author even after the copyright assignment. Clause (b) talks about the author’s right to claim damages in case of distortion, mutilation, or modification of the said work if it is prejudicial to the author’s honor and reputation.
The earliest elaboration on the issue of moral rights can be traced back to the case of
Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd. and Ors. AIR 1987 (3) Delhi 13, the Delhi High Court had observed that the ‘modification’ should “not be so serious that the modification form of the work looks quite different from the original.” In this case, the plaintiff must prove that the commercial usage of their mural in the form of advertisement by the defendant was a modification that perverted the original work to the extent of ‘mutilation’ or ‘distortion.’
Conclusion
The single-judge bench has an interim injunction on the plaintiff, and the defendant has been asked to remove the online postings of the advertisements. The Court has not formed a legal opinion on the given issue regarding the fairness of a mural displayed in a public place and the author’s moral rights.
This case can potentially set a benchmark for the protection of street art and its commercialization and elaborate on the concept of moral rights, which is still in its developing stage.
