Keith Hering’s “Crack is Wack “ mural made on an abandoned wall of a handball court in East Harlem which supports anti-crack campaigning and was inspired by his assistant Benny, who became addicted to crack.

Banksy’s “Girl With Ballon”  in Shoreditch, London( painted around 2002)

From the urban districts of Nairobi in Kenya; Delhi’s Lodhi Art District , Delhi, to the Rajputana murals in Udaipur, Rajasthan,  the trailblazing pieces of commissioned artworks adorning the walls of the public buildings across the various cities are popularly known as graffiti or Street Art. However, the history is far removed from the very essence of them being unsanctioned and therefore they were often hailed as illegal back in the 1970s America. Street Art emerged as a form of protest, however, unlike dystopian surrealism, the protests were focussed more on the process rather than the outcome. The question remains whether Graffiti can be protected from copyright violations and how they are perceived under the umbrella term of “ intellectual property”.  Any original work of  art on a tangible medium by a natural person automatically falls under the purview of Copyright. The question as to how this street art, created illegally, in a third person’s property can be claimed to be under Copyright protection news to be understood from the position of the artistic expression and for the promotion of arts that any original creation must be entitled to. The creative expression of an author( here the painter) is protected by the TRIPS agreement and the Berne Convention and it is regardless of the value or the process of creation as long as the works are original. Such copyrights exist for the entire lifetime of the artists, followed by an additional 70 years and it is imperative to mention that the street art, even if created on someone’s property, does not render the ownership of the artwork to the owner of the material property, unless contractually stated.

As a subculture that existed in America in the 1970s and 80s, the themes of such graffiti and street art centred around race, sex, tyranny and locating the aesthetics in anti-establishment practices. The murals thus created, have far greater significance, for they represent a social movement and a way of being, standing tall as a counter-culture. The exceptions to the copyright of street art lie in important factors like the freedom of panorama and the fair use doctrine whereby the art can often be documented or published as they are in the public spaces and they can be used for parodying, criticizing or for comments, without the necessary permission from the owner.

In the United States, the Visual Artists Rights Act (VARA), 1990 is of utmost importance as they render the necessary moral rights to the artists to protect their art pieces from destruction or damage. The VARA grants the author the right to right to prevent the use of name in any work of art not created by the author, prevent the use of name on works that has been distorted, mutilated or transmogrified and that has in turn affected the goodwill and reputation of the author.

Following the same line of thought, the graffitis can also be brought under protection and there can be compensation in case of violations as has been pronounced in the famous case of Cohen v. G & M Realty L.P. - 320 F. Supp. 3d 421 (E.D.N.Y. 2018) where the owner of a building had whitewashed the wall art by 21 graffiti artists and then demolished the building and thus compensation was claimed to the tune of 6.75 million USD. The famous anonymous artist Banksy also lost to a greetings card company, Full Colour Black in a trademark dispute over his famous painting “the flower bomber”’ “ Love is in the Air”[Cancellation No. 33 843 C (Invalidity), Full Colour Black Limited v. Pest Control Office Limited (EUIPO Sept. 14 2020)]The other instance of copyright infringement cases can be the one where artist REVOK( Jason Williams) filed a suit against H&M for using one of his graffiti as a background in one of their campaigns.

The copyright infringement for graffiti art has thus seen a major shift from being seen as an underground movement to being recognized in the mainstream art world and more and more galleries have been picking up the works of artists and providing them with the necessary platforms. There have been previous instances where graffiti artists have sued major brands like Vince Camuto( fashion label), Moschino( fashion label), McDonalds( Fast food chain) among others for unauthorisedly using their street art in commercial campaigning and on their products without seeking the necessary license.

Lawyer Nandita Saikia has extensively written and researched on the street art and IPR movement and she mentioned in her writings how the Copyright Act in India is not well adept in protecting the individual rights of the artists and one must not forget how the laws place the folk artists at a disadvantage for the question of “ originality” stays ambiguous in such a manifestation. Attorney Debottam Bose believes that the problem could stem from the fact that the majority of street art is open source and available in the public domain which is why many galleries have picked them from the public sphere and have put them up for sale in museums.

Thus what is important is to have an international framework adhering to which the Indian Copyright Act can undergo amendment to address the copyright infringement issues pertaining to the “ anti-art” in graffiti. The role of street art is transcendental and moves beyond the idea of the canvassed compartmentalisation, making it approachable and thereby intertwining the ideas of personal-political, socio-cultural and aesthetics into the everyday ordinariness. In India artists like Guess Who and A- Kill are leading the movement forward and if the legal framework can be strengthened these public art can be commercially viable and the recognition shall benefit the art community as a whole. “ We often see beautiful murals and paintings on posts, pillars and other places on which random posters are pasted and in this way the artwork is defaced. The government needs to protect the interests of these artists and their art and the Copyright Law, 1957 must be amended in a manner so as to include a chapter that would safeguard beyond the moral interest of the artists and protect their economic and commercial interests. Importantly there must be parallel provisions like the VARA, 1990 in Indian legislation”, says Mr. Subhash Bhutoria, Partner ( IP and Art Law Practice) at DSK Legal. Thus, laws for street art must be strengthened in order to popularize and commercialize a form that must not necessarily follow rules and the order of the day. The famous American street-art legend Jean Michel Basquiat said, “Graffiti has a lot of rules in it as to what you can do and what you can’t do, and I think it’s hard to make art under those conditions.” The disorder, that is art, thus must live only when the order remains by enforcing proper laws and enactments.