Murals And Copyright Law – Copyright

What Is A Mural?

Murals are artworks painted on walls. Michaelangelo’s
ceiling at the Sistine Chapel, the exquisite frescoes
of Ajanta and Ellora and Banksy’s Girl With A Balloon
stencilled on the walls under Waterloo Bridge at London’s
Southbank – all are murals. So is graffiti, – which is
commonly found on city walls the world over. Often an insignia of
pride and culture, murals are a significant medium of showcasing
history, traditions, customs and sentiments. The capital city of
India, Delhi, houses a vibrant mural community. The Lodhi Art
District is India’s first art district and home to over 65
stunning murals by national and international artists. Such mural
sites enjoy public adoration which also leads to their becoming a
part of advertising and marketing campaigns run by brand owners and
social media influencers.

As appreciation for this art form, particularly street art,
rises and embeds itself in the public consciousness, with growing
utilisation in commercial advertising and marketing, artists are
increasingly asserting proprietary rights over it. This article
delves into the nature of intellectual property rights that vest in
such works. Legally enforcing these rights can be tricky,
particularly in India, given the myriad interpretative tussles
involved vis-à-vis the law and exceptions, as well
as the risks and uncertainties associated therewith.

A “mural” is defined by the Cambridge dictionary to
mean “a large picture that has been painted on the wall
of a room or building”. In terms of the Indian Copyright
Act, 1957 (the ‘Act’), a mural would fall under the
definition of “artistic work” under Section 2(c) of the
Act as well as under Section 2(y), and would be vested with
copyright protection under Section 13. Therefore, a claim of
copyright protection in respect of a mural by an artist would be
well within the bounds of Indian copyright law. Coming to the
reproduction of murals, under the Act, any reproduction of a
protected work in any material form to communicate the work to the
public – including depiction in a 3D/2D work, inclusion in a
cinematograph film, issuance of printed copies of the work etc.
would be the exclusive right of the copyright owner – either the
artist itself or any organisation to which rights in the mural may
be licensed. However, there are notable exceptions and the de
minimis doctrine is one of them.

De Minimis

De minimis refers to copying that is too trivial in
nature – the copying in such an instance falls within
‘fair use’. A decision in Gayle v. Home Box Office,
Inc. illustrates the point well – here the US District Court
for the Southern District of New York dismissed copyright claims
made by a graffiti artist against use of his work by HBO series
‘Vinyl’ in the background. In one episode of the show,
a woman is seen walking past a dumpster painted with graffiti that
says “art we all.” The graffiti artist claimed this
depiction violated his copyright and trademark rights. Per the
court, the artist’s claims were premised on a fleeting shot
of barely visible graffiti in the background of a single scene
where the art appeared for no more than two to three seconds. The
graffiti was not showcased by itself or visible in a close-up and
played no role in the plot. Accordingly, the court found the
said use to be too fleeting, unsubstantial and de
minimis.

In India, Section 52 of the Act carves out specific fair use
exceptions in this context. Section 52(1)(u) states that it would
not be infringement of copyright to include in a cinematograph film
any artistic work permanently situated in a public place or any
other artistic work, if such inclusion is only by way of background
or is otherwise incidental to the principal matters represented in
the film. Section 52(1)(t) then provides that publishing or making
of a painting, drawing, engraving or photograph of a sculpture or
other artistic work under the statute, would not amount to
infringement of copyright, if such work is permanently situated in
a public place or any premises to which the public has access. In
this manner, both provisions endorse the de minimis
position.

That said, there is a dearth in pronouncements on this specific
subject in
India. However, we discuss two cases from the United States below
which make interesting, and very relevant, points.

Fair use exceptions regarding inclusion of publicly situated
works are echoed in the Architectural Works Copyright Protection
Act, 1990 (AWCPA) in the United States which states that copyright
in an architectural work that has been constructed does not include
the right to prevent the making, distributing, or public display of
pictures, paintings, photographs, or other pictorial
representations of the work, if the building in which the work is
embodied is located in or ordinarily visible from a public place.
This provision was relied upon by Mercedes in 2019 before the US
District Court, Eastern District of Michigan (Mercedes Benz,
U.S. v. Lewis, Case No. 19-10948 (E.D. Mich. Sep. 11, 2019),
seeking declaratory judgment against artists who threatened
Mercedes with copyright infringement. This was on account of
Mercedes’ use of certain photographs on its Instagram page
consisting of its new G 500 truck driving past the murals of the
artists in question. The court determined that Mercedes had alleged
a plausible claim under the AWCPA that would protect its rights to
photograph publicly visible buildings containing defendants’
murals, although it did not pronounce a final judgment on the
question of law as the case was ultimately settled.

Even before Mercedes, in the case of Leicester v. Warner
Brothers [No. CV-95-4058-HLH (CTX), 1998 WL 34016724 (C.D. Cal.
May 29, 1998)], the US Ninth Circuit considered ‘whether
a sculptural work commissioned as part of an architectural project
should be afforded copyright protection after it was used by Warner
Brothers in its film, Batman Forever’. Andrew Leicester, an
artist known for large scale public art, had designed an entire
courtyard space, called the Zanja Madre (which he registered as a
‘sculptural work’), built adjacent to the 801 Tower in
downtown Los Angeles. In 1994, the 801 Tower and four towers that
form its streetwall on the south side of the building became the
Second Bank of Gotham in the movie Batman Forever. Leicester
claimed copyright infringement for inclusion of the 801 Tower and
streetwall without his permission. The district court found that
the streetwall towers (even though they had artistic elements) are
part of the ‘architectural work’ and pictures of the
streetwall towers along with the 801 Tower did not constitute
infringement pursuant to the exemption for pictorial
representations of buildings in the Architectural Works Copyright
Protection Act of 1990. 

Murals and Moral Rights

Authors also enjoy certain special statutory rights – for
instance, even after assignment of whole or part of the copyright
they retain ‘moral rights’ that include the right to
claim authorship and to restrain or claim any damages against any
distortion, mutilation, modification or other act in relation to
the assigned work if such act is prejudicial to the author’s
honour or reputation [Section 57 of the Act].

In the context of murals and moral rights, in India, the
judgement of the High Court of Delhi in Amar Nath Sehgal vs.
Union of India and
Anr[2005 (30) PTC 253 (Del)] has
been seminal.
Amarnath Sehgal, a well-known sculptor, was commissioned by
the government to prepare a bronze mural for
the Vigyan Bhavan – a prominent convention hall in
Delhi. The mural went on display in 1962 but was
taken down in 1979 on account of renovations at Vigyan Bhavan. In
the process, it was slightly damaged due to mishandling and
negligence. Amarnath sued
the government claiming his moral rights had been
violated. The government argued that it had purchased the mural for
a due consideration and, as owner of the work, had the power to
utilise it as it deemed fit, including its removal from public
display. However, the court emphasised that the mutilation and part
destruction of the mural was prejudicial to the reputation of the
author itself, regardless of the owner. Terming moral rights as the
‘soul of the author’s works‘, the court
awarded Amarnath a compensation of INR 5,00,000 (USD 6250).
Further, the remains of the mural were ordered to be delivered to
him for the purpose of restoration and further sale.

In similar vein, in 2021, some murals in Mumbai and Delhi were
painted over with murals of famous soccer playerLionel Messi as
part of a campaign launched by the India office of beer brand
Budweiser. The alcohol giant was called out on social media for
painting over murals by existing artists to create
‘billboards‘ and for ‘hijacking the
street art scene in India‘ for commercial gain. The
backlash that followed made Budweiser take down the Messi art and
restore the previous artworks. In public statements made after the
event, one of the co-founders of the St+art India Foundation (a
not-for-profit organization that works on art projects in public
spaces in India) was quoted as saying, “We had no problem
with the painting over of existing work. It happens all the time.
Take the Bowery Mural Wall in New York, for instance. It gets
painted over every few months and people look forward to seeing new
ideas… What upset us was to see a mural that has no cultural or
local connect and [the fact] that a similar mural was replicated in
Mumbai – that’s not an artwork.”

Sentiment and culture thus appear to be strong undercurrents in
the legal landscape governing murals. Moral rights of artists,
which are often ignored or perhaps underplayed, can prove to be
lucrative and an important tool in shaping the contours of legal
protection afforded to murals.

Practically Speaking

It is not uncommon for artists to allege copyright infringement
if their murals painted on public places feature in third party
advertisements. They typically allege substantial reproduction of
their work without their consent. On the contrary, advertisers
contend the use is incidental to their overall advertising
video/campaign particularly as the murals are located in public
places. In the Indian context, as explained above, if the use of a
mural is incidental or if the mural is situated in a public place,
such use would qualify as ‘fair use’. On balance, it
would be fair to say that the unique facts of a case would be
relevant in coming to a determination of copyright infringement or
a lack of it.

From a commercial standpoint, the main bone of contention
appears to be the illegitimate use of an artist’s work as
part of a backdrop for films, creatives, advertisements etc.
without giving credit or royalty. Interestingly, growing
consciousness amongst the general public about artists’
rights have also led organisations to face social media backlash
for coming on too strongly on small artists or misappropriating
their works without consent. In such cases, on one hand artists can
be disincentivised from creating murals in public spaces. On the
other end, onerous burdens may arise for advertising companies
which run contrary to the statutory exceptions of fair use. In the
specific context of murals, due regard is to be paid to the strong
cultural and local value murals hold for any given area.
Commissioning murals in public spaces is often a way of
architecturally renovating historic places with the object to add
relevance and vibrancy to them.

Broadly put, the level of copyright protection afforded to
artworks like murals would ultimately depend upon where a mural is
situated and the nature, manner and medium of reproduction. Use of
murals today can range from use in a selfie by a social media
influencer to use in a large scale brand campaign by a well-known
brand. It will be interesting to see how commercial interests – new
age marketing in particular – and the creative spirit expressed in
murals intersects in the days ahead.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.