Abstract
This piece seeks to demonstrate the striating role of property within street art and graffiti, creating a threshold where criminal and intellectual property meet to both outlaw and protect street art at the same time. Street art reveals a legal vacuum for poiesis, protest and property on the threshold of aesthetic and juridical legitimacy and illegitimacy, illustrating where law means all and nothing at once. Legal sanction is argued as affecting the aesthetics of street art, where criminalisation protects the rights of property owners over the creative rights of artists, reasserting the exclusionary nature of law, intertwined with reasserting the ‘outsider’ nature of their art. This is argued as not coincidental but that notions of aesthetics are not only prioritised by the art ‘establishment’, but also supported by law, to the detriment of other forms of aesthetics such as street art and graffiti. As such, street art and graffiti reveals the elixir of property in both the art and legal establishments, coming to pass as a result of violent histories of expropriation through art property and real property. Ultimately, street art and graffiti is argued as a protest against the legal-aesthetic hegemony, the analysis of criminal, real and intellectual property meeting points telling us more about the congenital role of art in law and vice versa than solely explaining the legalities of random acts of illicit expression.
If graffiti changed anything, it would be illegal.
Banksy
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Notes
- 1.
Gomez (1993) presents a dichotomous categorisation of graffiti—‘graffiti art’ and ‘graffiti vandalism’.
- 2.
Jean Dubuffet coined the term art brut, translated by Roger Cardinal in the 1970s as ‘outsider art’ (1972).
- 3.
Scots Law similarly prescribes the control of graffiti and street art under the Anti-Social Behaviour Act (Scotland) 2004 ss. 58–61.
- 4.
The 1709 Copyright Blog cites McDonald’s intentional falsified copyright management information as a violation of 17 U.S.C. § 1202 ‘which forbids anyone to knowingly and intentionally, in order to induce, enable, facilitate, or conceal infringement, to provide false copyright management information’, and this argument has also been made by graffiti artists Revok and Steel of graffiti crew MSK in their copyright infringement suit against Roberto Cavalli (Williams, Chapa, and Rubin v. Cavalli) (Central Dist. Of CA, 2014) (Weiss 2017).
- 5.
Recent US examples other than Jade Berreau v McDonald’s are: Anasagasti v. American Eagle Outfitters, Inc., No. 1:14-cv-05618 (S.D.N.Y. Jul 23, 2014); Hayuk v. Sony Music Entertainment et al, No. 1:14-cv-06659 (S.D.N.Y. Aug 19, 2014); Miller v. Toll Brothers, Inc., No. 1:15-cv-00322 (E.D.N.Y. Jan 21, 2015).
- 6.
UK, Defined by Copyright Designs and Patents Act (CPDA) 1988, (1) in this Part “artistic work” means—
-
a.
a graphic work, photograph, sculpture or collage, irrespective of artistic quality;
-
b.
a work of architecture being a building or a model for a building; or
-
c.
a work of artistic craftsmanship.
-
a.
- 7.
Article 2 of the Berne Convention states: “[T]he expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as […] cinematographic works […] works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works […] works of applied art […]”
- 8.
Bonadio (2014) refers to cases in the US, such as English v BFC&R E. 11th St LLC, where the question raised by defendants was, since it was illegal to place a mural graffiti work, it should be excluded from the copyright protection, as well as Mitchell Bros. Film Group v Cinema Adult Theater, in which the obscenity of a work was taken into consideration when claiming validity of protection and copyright infringement.
- 9.
A famous demonstration of this is the case of the ‘Monkey Selfie’ Naruto v Slater (2016), where the plaintiff PETA acted on behalf of Naruto (the monkey who had taken a photo of himself using photographer David Slater’s camera), claiming that the monkey selfie pictures came ‘from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by Naruto’ (Guadamuz 2017). PETA were deemed not to have standing to represent Nurato and, as Guadamuz explains, the copyright subsists with the photographer Slater, given the ‘sweat of the brow’ argument.
- 10.
Perhaps the most potent form of protest, following a long tradition of Temporary Autonomous Art that thrives on its impermanence, is exemplified in artist Blu’s destruction of his own work in protest against the local authorities in Bologna’s hypocritical stance towards street art and graffiti as they opened their doors to a bank-sponsored exhibition ‘Street Art Banksy & Co’ in 2016 whilst exerting draconian criminalisation of street artists and graffiti writers: ‘We are faced with arrogant landlords who act as colonial governors and think they’re free to take murals off our walls. The only thing left to do is making these paintings disappear, to snatch them from those claws, to make hoarding impossible’ (Vogt 2016). Forget the removal of works by the owners in realty, but the invisibalisation of art by the artists themselves.
- 11.
Defined in leading UK case Walter v. Lane, EU ruling Football Dataco Ltd and Others v Yahoo! UK Ltd and Others - C-604/10 - Football Dataco and Others; and in the US - Feist Publications v Rural Telephone Service Co 499 US 340 (1991) 113 L Ed 358 (1991) (Sup Ct) at 369 (found at Stokes 2014).
- 12.
Right to protest claims under the Human Rights Act 1998 (Articles 10 and 11, freedom of expression and freedom of assembly) in the UK context have thus far proven fruitless coming up against the rights of the landowners on whose land protests have been occurring as per City of London Corp v Samede [2012], demonstrating the striating role of property in expression not confined to the placement of art in the street. However, where right to private and family life under Article 8 arguments have been used, one can see the development of precedent around the use of the article, a defence in protests on private land can be engaged where the rights of the protestors may have the potential to trump the Article 1 Protocol 1 right of peaceful possession of property by the landowner in ‘exceptional circumstances’ (Manchester Ship Canal Developments Ltd v Persons Unknown [2014]; Malik v Fassenfelt [2013]).
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Cases
Creative Foundation v Dreamland Leisure Ltd Chancery Division [2016] EWHC 859 (Ch)
Creative Foundation v Dreamland Leisure Ltd Chancery Division [2015] EWHC 2556 (Ch)
Manchester Ship Canal Developments Ltd v Persons Unknown [2014] EWHC 645 (Ch)
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Non-UK
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Acknowledgement
With many thanks to the editor Saskia Hufnagel for the inclusion of my work in the handbook and her reading of my work and Donald McGillivray and Andres Guadamuz for their kind assistance in reading and commenting on this piece. Thank you to Colin King for putting me in contact with the editors of this handbook in order to give me space to develop these ideas around street art, graffiti, aesthetics, law and property. With many thanks to Alison Young and Marta Iljadica for their work on street art and graffiti that I refer to and our contact in recent times on the intersection of art and law.
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Finchett-Maddock, L. (2019). In Vacuums of Law We Find: Outsider Poiesis in Street Art and Graffiti. In: Hufnagel, S., Chappell, D. (eds) The Palgrave Handbook on Art Crime. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-54405-6_38
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