I. Introduction
Street art's transient nature poses a unique issue in the context of copyright. These artworks are put out on the streets and suffer time, wind, and the passing people. This implies that an artwork can be obliterated, obscured, or changed without the artist's permission. These changes could violate the artist's copyright, especially if they significantly alter the original work. Street art by its very transient nature highlights the precarious relationship between the artist's intellectual property rights and the changing urban fabric.
Such fleeting creations, therefore, raise very important questions about the role of the local authorities and communities in taking care of and protecting them. As street art quickly evolves, it becomes very important to find the balance between street art and artistic rights. Therefore, this is not an easy challenge, however, it underlines the issue of the copyright approach towards street art that is based on the recognition of the dynamics of creativity and the ephemeral nature of these urban masterpieces.
II. What does The Act say?
Murals are also categorised as works of art under Section 2(c) of the Indian Copyright Act (ICA), 1957. Section 13 of the Act also grants copyright protection to murals, as they fall under the definition of Section 2(y). As such, any claim of copyright protection made by an artist concerning a mural is entirely compliant with the ICA.
According to the Act, it is the exclusive right of a copyright holder to reproduce murals in any tangible form intended for communication to the public, whether two or three-dimensional, a cinematograph film, or a printed copy. The mural could be owned by the artist or by an organization that has the right to license the mural.
III. De Minimis Doctrine
In addition to copyright protection, the ICA also contains certain exceptions that provide a certain degree of flexibility within the narrow framework of copyright protection. For instance, the de minimis doctrine states that where an artist uses a copyrighted work in a minimal and inconsequential way that is beneath the threshold of copyright infringement, that use is not deemed an infringement. This is particularly relevant in the context of street art and murals, where the artistic process is usually conducted by including aspects from already existing works or the urban environment into the work in a way that is not too obvious.
The de minimis doctrine provides essential flexibility that is vital for street artists. It allows them to be inspired by their environment and culture without the continuous fear of infringing copyright as long as such use is considered trivial and inconsequential. This concept respects the rights of copyright owners while acknowledging the particular difficulties faced by street artists and fostering a creative environment that thrives on the fusion of disparate materials.
IV. Landmark Cases Which Shape the Landscape of Moral Rights
Under Indian law, moral rights are granted under Section 57 of the ICA, marked as the author's exclusive rights. According to this section, these rights continue independently of copyrights and thrive even in the case of a full or partial copyright transfer. Aligned with the principles of the Berne Convention, Section 57 preserves both the Right to Paternity and the Right to Integrity. Throughout the years, numerous key decisions have impacted the landscape of moral rights in India.
One of the first cases in India "Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd" (Mannu Bhandari) which established a critical interpretation of Section 57 and moral rights. Before this historic judgement, moral rights protection mainly applied to literary works, leaving artists of other kinds in the dark about their specific rights. However, the Mannu Bhandari decision broadened Section 57's scopeto include works other than literary works. Mannu Bhandari, the appellant, claimed that the film 'Samay ki Dhara,' based on her Hindi novel'Aap ka Bunty,' diverted from the filmmaking rights granted to her, resulting in the destruction and mutilation of her work and its original purpose. She was concerned that the film's public release would tarnish her image among literary professors and students. As the author of the novel, she was opposed to changes to the characters and subject in the film version. After reviewing the facts of the case, the court determined that the film could only be broadcast provided the adaptation's revisions did not distortthe story's premise. Finally, an agreement was reached in which the respondent apologised for the modifications, promised to remove the author's name and novel from the film credits, and promised to mention them in any promotional activity for 'Samay ki Dhara.' The appellant waived all rights to the film adaptation while the copyright of the book 'Aap ka Bunty' stayed with the author herself.
Furthermore, the court delivered a landmark judgement Amar Nath Sehgal vs. the Union of India (Amar Nath) upholding moral rights in which the renowned sculptor became embroiled in a dispute with the government. Sehgal had been commissioned to create a mural for Vigyan Bhavan—however, an unexpected turn of events unfolded during the building's renovations. Without notifying Amarnath and without any prior notice, the government removed and stored his mural in the building alongside others. Regrettably, Sehgal's masterpiece suffered slight damage due to their negligent actions. This prompted Amarnath Sehgal to file a lawsuit against the government, alleging a violation of his moral rights through the improper handling and retention of his artwork without obtaining his permission. In its judgment, the court emphasised the importance of moral rights for protecting an artist's work, stating that they continue even after selling the artwork. The court expressly stated that the destruction or mutilation of artwork is a clear violation of the author's moral rights. As for the case of the partly damaged mural, the court took into consideration that, regardless of who owned the artwork, such activities were harmful to it and harmed the author's reputation. Therefore, the court granted compensation to Sehgal for the violation of his moral rights.
Unlike the two earlier cases in which the court delivered progressive judgements to protect moral rights, Raj Rewal v. Union of India (Raj Rewal) directly contradicts this approach. The case centered on the creator of Delhi's Hall of Nations' moral rights. The plaintiff got a commission from the defendant, ITPO, in 1979 to build the Hall, which was then designated as a cultural heritage site. Regrettably, the Hall was demolished in 2017 to make room for a new development. The plaintiff went before the Delhi High Court to safeguard his moral rights. The court's decision accepted ITPO's ownership of the Hall of Nations property and noted a contradiction between the plaintiff's moral rights and the defendant's property rights. The court ruled in favour of the defendant, stating that the constitutional right to property overrules moral rights and that Copyright law cannot overrule the Constitution. The constitutional right must be protected in such cases of dispute between the two.
The Amar Nath case shed light on an unexplored aspect of moral rights, revealing their role in safeguarding a nation's cultural heritage. This case demonstrated how moral rights may be used to safeguard a country's cultural heritage. India has made significant progress in recognising the importance of moral rights, as evidenced by the 2012 amendment granting permanent moral rights.
However, the Indian Judiciary appears to be at a crossroads in its approach to moral rights. While successfully preserving these rights and cultural heritage in certain cases, as seen in the Amar Nath case, there are instances, like the Raj Rewal case, where progress falters. The paradox arises when constitutional rights, theoretically designed to protect individual rights, seem to undermine the inherent and inalienable nature of an author's moral rights. This raises the question of whether constitutional rights should have the authority to revoke such inherent rights.
V. Street Art Posing An Ownership And Consent Dilemma?
Street art raises complex questions of ownership and authorship, making it a multi-faceted issue. Unlike conventional forms of art, street artists sometimes use pseudonyms or wish to stay completely unknown. The anonymity inherent in street art makes this issue rather more difficult. This raises questions as to how copyright ownership can be attributed when the artist remains anonymous or deliberately anonymous. In a recent case, Banksy, the elusive street artist, lost the rights to two iconic works, "Love Is In The Air - Flower Thrower" and "Laugh Now." Despite being widely recognised as Banksy's creations, the European Union Intellectual Property Office (EUIPO) ruled in favor of a company selling Banksy's work without permission. These artworks, created in the early 2000s, were never actually signed by Banksy himself. In 2014, when Pest Control, which verifies Banksy's work, tried to copyright the piece, they were required to provide the owner's identity, which Banksy refused. In 2018, Banksy challenged the use of the words "Laugh Now" by a greeting card company, but the EUIPO ruled in the company's favour citing consistency in verdicts for Banksy's works, the public's ability to photograph the art without permission, and the anonymous nature of the artist, making it impossible to determine the true author. This case raises concerns for anonymous artists, potentially establishing a legal precedent. Despite Banksy's reluctance to reveal their identity, the ruling underscores the challenges faced by artists who choose to remain anonymous. The anonymity of street artists complicates legal disputes and copyright enforcement. In cases where an artist's intent for anonymity interferes with the need to protect their work, a complex situation arises. Therefore, it is imperative to handle the intricate question of ownership and authorship of street art on a very case-by-case basis, taking into consideration the need to safeguard the identity of the artist and their copyright interests. It highlights the special and unique nature of street art which makes it hard to regulate under Intellectual property law.
Due to its very nature, street art often involves the creation of pieces of art without necessarily having permission from owners, either for public places or privately owned areas, raising many important questions about consent and permission. Although artists may strive to add to a place's cultural fabric, the fact that their work is not sanctioned can be construed as a breach of property ownership. In the case of Villa v. Pearson Education, Hiram Villa, a graffiti artist filed a lawsuit against Pearson Education, accusing the company of using his artwork as a strategy guide for a computer game called Tony Hawk. However, Pearson tried to dismiss the case by arguing that the artist's work was illegal and therefore not protected by copyright law. Despite some procedural issues, the case continues to be debated in court. The court turned down the request, stating that it was premature to discuss the art's illegality at that point since it depended on the specific facts. Regretfully for those who were curious, the parties came to an agreement before the court could make a decision.
This case illustrates that courts typically examine cases of unauthorised graffiti under the assumption that such creations may be subject to copyright, although the court has not expressly affirmed the validity of copyrights for such works. Instead of emphasising the defence of illegality, they have concentrated on copyright defences when dismissing legal claims.
However, this poses a complex legal and moral quandary and a careful balance must be maintained between the rights of the artist who wishes to express himself and the property owner, whose land may not be meant to serve as a white canvas for others. It is important to resolve these problems about consent and permission in street art and examine property rights, freedom of expression, and the delicate balance between the artist's interest and the owner of the property.
VI. Conclusion
The Constitution of India guarantees the protection of freedom of expression of views and ideas as Fundamental Rights. When these ideas are depicted in different creative forms, they remain a valuable form of expression that should be protected by intellectual property rules. Ensuring that these laws align with the Constitution will not hinder this protection. It is challenging to determine if street art and graffiti, which are contemporary art forms that may or may not be limited to paintings or drawings, can be classified as creative work under the Act. Street art and murals enhance urban environments, weaving an extra layer of depth and texture into the fabric of our culture. Safeguarding artists' copyrights is crucial for acknowledging and honouring their societal contributions. Yet, the unique aspects of street art—such as anonymous authorship, the fleeting nature of outdoor works, and the flexibility of the de minimis doctrine—introduce complexities to the copyright landscape. While the law provides significant protection to different kinds of art such as street art, protest art, and graffiti, it is often difficult for these art forms to access these protections even though they meet the two essential requirements for copyright protection: the originality of the work and the fixation of such original creations in a tangible medium. The primary cause of this unequal treatment lies in the 'unclean hands doctrine'—the idea that plaintiffs should be denied protection or remedy if they engage in unethical, illegal, or bad faith acts. It is the need of the hour to maintain a harmonious balance among legal frameworks and protect artistic expression as freedom of speech and expression. In the constantly changing realm of street art, it is crucial to foster innovative self-expression while upholding the rights and intentions of the artists who contribute to the urban story. The continuous pursuit of balance highlights the vital importance of managing the interplay of copyright and artistic expression in street art. Furthermore, different countries like the USA, France, and Australia have special laws that identify these art forms as alteration of property and have certain legal consequences related to the unlawful fabrication of these kinds of art in public areas. However,no official legal protection has been placed on street art and graffiti until now in India.
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