This story starts with an abandoned rail line in the ravine behind my townhouse in Toronto, which I enjoy walking along with my six year old grand-daughter who thinks of it as her “secret railway”. It is very overgrown and hasn’t been used for years, but has an interesting history. Originally incorporated as the Ontario and Quebec Railway in 1881, until recently it still existed as a legal entity even though the company was absorbed by the CPR many years ago.
About a decade or so ago, just across the ravine, a developer wanted to create an enclave of new houses. To do so, he would have to cross the rail right-of-way. Even though the line was abandoned in practice, it was and still is a legally functioning rail line, and thus a new concrete bridge had to be built over the tracks in the ravine to access the development. A special meeting of the shareholders of the defunct company was called and approval was granted. Concrete foundations were poured and a new bridge was duly built.
But this blog isn’t about a railway. Those pristine concrete foundations holding up a bridge above an abandoned rail line in a little visited ravine have proven to be an irresistible “secret location” for graffiti artists, and the abutments now sport an impressive assembly of street art. I am no expert but it looks pretty good to me, so I thought perhaps I would take a photo and share it with you. But then the wheels started turning. Could I do so legally?
As just about everyone who follows copyright knows, registration is not required for a work to be protected by copyright nor is the © symbol required. However, if you really want to emphasize that your work is protected, adding the symbol will remind and notify the world that the work is not free for the taking. Normally one should contact the author to receive permission to reproduce (i.e. copy) the work, even if the reproduction is in the form of a photo. (Interestingly, the photo itself could enjoy its own copyright protection). And on one of the pillars, adorning a particularly colourful rendition of something, is the unmistakable sign of © 2018.
But this is street art, graffiti. Is it protected by copyright? I mean, linking street art and copyright is almost an oxymoron, at least to many street artists. But yet works by anonymous street artist Banksy, often removed from the surfaces to which they were attached, have sold for hundreds of thousands of dollars, even though Banksy himself has not profited and on his website proclaims that, “Members of the public should be aware there has been a recent spate of Banksy exhibitions none of which are consensual. They‘ve been organised entirely without the artist’s knowledge or involvement. Please treat them accordingly.”
Dr. Aislinn O’Connell, a lecturer in law at Royal Holloway University in the UK, points out that in Britain, “any artistic work, any painting, drawing, chart, map, or plan, is protected by copyright”. Part of the problem with street art is that it is inherently a criminal activity, since any damage to private property–including defacing it with unauthorized art work–is an offence. Thus the medium on which the graffiti is affixed in almost every instance does not belong to the artist. Despite this problem Dr. O’Connell concludes that as long as the work is the result of “the author’s own intellectual creation”, even if “badly drawn, badly executed, and visually unappealing”, it enjoys the protection of copyright under UK law. Although she refers to case law in the US, where “there have been multiple attempts by graffiti and street artists to claim copyright in their works, (but) all have settled out of court or been dismissed”, she believes that there is no statutory provision or case law which denies copyright protection to street art. However the law remains to be tested and clarified.
In the most recent case, graffiti artist Jason “Revok” Williams sent a cease-and-desist letter to clothing retailer H&M regarding the company’s clothing ad that used Williams’ street art as a backdrop. In response H&M filed a suit against Williams denying his copyright since the work was painted illegally on public property. In the face of a public backlash, H&M withdrew its suit but the issue of street art copyright remains unresolved from a legal perspective. Another very recent case involves three US street artists suing shoe and accessory manufacturer Aldo for posting photographs on the company’s social media accounts of models posing with Aldo products in front of street art attributed to the artists. The posts have now been taken down but the artists are seeking injunctions preventing any further unauthorized use of their work plus punitive damages.
Speaking of US case law and street art, you may remember the case of the 5Pointz building in New York City and its owners David and Jerry Wolkoff. Back in the 1990s, the Wolkoffs owned some derelict factory buildings that they allowed to be festooned in street art. The painted buildings became a tourist attraction and a magnet for a wide range of street artists. A number of years later the Wolkoffs decided they wanted to sell the property for development and tear down the buildings, in the process destroying the art. A group of artists, including one who acted as “curator”, sought an injunction in 2013 to block the demolition. The judge granted a restraining order to consider claims of moral rights by the artists under a relatively obscure piece of legislation known as the Visual Artists Rights Act (VARA) of 1990. Under that legislation, according to The IPKat, the author of a “painting, drawing, print, or sculpture, existing in a single copy” or in a limited edition of 200 or fewer, shall have the right to claim authorship of the work, to disclaim authorship of a work falsely attributed to him or her, and to prevent the credit of authorship over his or her work if that work has been distorted, mutilated or otherwise prejudicially modified. In addition, the author has the right, “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.”
In the end, the court decided the building would have to come down, but further legal action was taken and things dragged on and on. Almost five years later, the frustrated owner took matters into his own hands, painted over the street art that was on removable panels and overnight demolished the building and the rest of the art. Demolition was not illegal as municipal permits had been granted, but that’s when Jerry Wolkoff got a big surprise. He was sued by 21 street artists under VARA for the unauthorized demolition of their art, even though the art was on a building that Wolkoff owned. The court found in favour of the plaintiffs and artists were awarded damages of $6.7 million dollars for the landowner’s act of destruction. Strictly speaking, this was not a copyright case but it shows that you had better think twice before you mess with graffiti artists.
This was running through my mind as I pondered whether to post the photo I had taken of the street art clearly marked © 2018. Now if the © mark had included a name, I could have tried to track down the artist and ask for permission. But there was no way to identify or locate the author. However, in Canada (and in the UK but not in the US), there is a provision to use orphan works if a licence is obtained under the Copyright Act’s unlocatable copyright owners provision. How to do this is fully explained by Lesley Ellen Harris on her CopyrightLaws.com site. You can read how to do it here, but suffice to say it is time-consuming and complicated. So what to do?
If I took a photograph of the art, using all the skill that I possess to position my phone at just the right angle of composition and in just the right amount of light and snap the shot without blurring the image (as I usually do), I could create a work that could be copyrighted. But according to what I have read, even though I could create my own copyrighted work, the copyright for the art will still reside with the artist (at least in the US). I would still be in the same position of requiring permission, unless my use was a fair dealing in Canada or fair use (in the US context). I mean, I am not marketing the photograph for gain but I guess it could be argued that I am exploiting it commercially by posting it on my blog, although the blog is not a commercial enterprise.
Ah, but perhaps I have found a way to stay on the right side of copyright law. According to the book Canadian Copyright Law (by Lesley Ellen Harris), in Canada a photograph (or other means of duplication) can be made of “any sculpture or work of artistic craftsmanship” if such work is permanently situated in a public place. As an example, she says that a painting that travels from one art gallery to another might not qualify because it is not permanently situated. This in turn suggests that a painting, (or street art), that isn’t going anywhere can be legally photographed and the photograph published. The art in the ravine is there permanently unless someone paints over it, but is an abandoned railway bridge abutment a public place? It’s certainly publicly accessible. It sounds like I am ok.
By the way, I could not use this exception in the US. According to US copyright law, photography of public buildings is legal, but this does not extend to public art. This is also the case in a number of countries, especially in Europe. In France, until 2016 when the freedom of panorama was finally added to French law, it was illegal to photograph any public building or art installation that was subject to copyright. This included structures such as the Eiffel Tower but, in recent years, only at night. This is because engineer Gustave Eiffel’s design copyright expired in 1993, seventy years after his death, but the night lighting installation designed by “éclairigiste” Pierre Bideau in 1985 is still subject to copyright. Photographs or reproductions of copyrighted art and buildings are still offside in France if commercially exploited, but with the recent adoption of the freedom of panorama, personal use photographs of public installations are now legal. Of course, with today’s ubiquitous social media postings some of which are monetized, the question of what is commercial use and what is not has been blurred.
Coming back to the art in the ravine, maybe if all else fails I will have to fall back on Canada’s education fair dealing exception and argue that I am using the image to teach and educate about the importance and value of copyright. Surely you agree? I hope so because my photo of the work in question adorns this blog.
Copyright is truly a fascinating subject. Look at the path it led me down in the pursuit of knowledge simply because of seeing some graffiti art under an abandoned railway bridge—from Banksy to 5Pointz, a comparison of US, European and Canadian copyright law and finally to the Eiffel Tower!
To the unknown artist or artists who like to work under that bridge, (there is much more there than just the one work on this blog), open up and let me know who you are. You will get full credit…if that is what you really want. But then that is not what anonymous street artists are all about, is it?
© Hugh Stephens, 2019. All Rights Reserved.
Another fascinating discussion on the vagaries of copyright. Keep them coming; I may learn something. Thanks.