Is Graffiti Protected By Copyright And If So, What Are Some Of The Legal Issues Posed By It? – Copyright

Copyright in graffiti is an interesting and relatively
unexplored area of law in Canada. It is still unclear what kinds of
protections a graffiti artists’ work can be afforded, but by
looking at the relevant sections of the Copyright Act and
examples of caselaw on related topics, it is possible to make
predictions about how some of the main issues surrounding the
subject might be dealt with by Canadian law. Continue reading for
an exploration into the issues relating to reproduction and moral
rights that graffiti might pose for Canadian courts and what they
might consider if such issues were to appear before them.

Does Copyright Subsist in Graffiti?

Canadian courts have not yet definitively ruled on whether or
not graffiti attracts copyright protection, but based on the
Copyright Act, it seems likely that it would.

As per section 5(1) of the Copyright Act, copyright
subsists in every original literary, dramatic, musical, and
artistic work, provided certain conditions are met, such as it
existing in a fixed form. There is no requirement that the work
must be created in some sort of “lawful” manner. So if a
graffiti artist creates an original artistic piece in a material
format such as on the side of a building, this piece should in
theory attract automatic copyright protection like any other
original, fixed artistic work.

The Issue of Reproduction

One of the concerns that has arisen in the US and that will
eventually have to be dealt with by the Canadian court system when
it arises in Canada, is what happens if a work of graffiti appears
in the background of another work? The right of reproduction in the
Copyright Act keeps individuals from incorporating
copyrightable art in their own works without permission from the
copyright owner.

An example of reproduction would be photographing a work of art
for a magazine. The photographer reproducing the work of art in a
photographic form technically requires the permission of the owner
of the work of art’s copyright before reproducing it. So if a
work of graffiti appears in a photograph of a building, is this
infringement?

The answer is that it would depend. If copyright subsists in
graffiti, then to prominently and purposefully reproduce it in a
photograph will probably raise issues. However, there are two
sections of the Copyright Act that are worth highlighting
because they might provide possible defences to an infringement
claim if someone reproduces a work of graffiti in another work
without the artist’s permission: section 30.7. and section
32.2(1)(b).

• Section 30.7 deals with incidental use of a work. It states
  that it is not an infringement of copyright to include a work in
  another work “incidentally and not deliberately.” This
  means that if a work of graffiti is shown in the background of a
  picture or a video by accident, the infringer might be able to
  defend that use on the basis of incidental inclusion.
• Section 32.2(1)(b) deals with permitted acts. It states that it
  is not an infringement of copyright to reproduce a work of artistic
  craftsmanship that is permanently situated in a public place or
  building. This means that if a work of graffiti in a public space
  could arguably be considered a work of “artistic
  craftmanship,” it may not be considered infringement to have
  it present in a photograph or video.

As well, it is worth noting that as with any use of
copyrightable works, the common fair dealing exceptions under
section 29 of the Act may also apply to the use of a
copyrightable piece of graffiti if the use/reproduction’s
purpose falls under the categories of research, private study,
education, parody, or satire.

The Issue of Moral Rights

Another major copyright concern that arises from the creation of
graffiti is the issue of moral rights. Moral rights offer artists
(a) the right to be associated with their work and (b) the right to
the integrity of their work. The right of integrity is the right
not to have a work modified or associated with a good or service
that could damage the artist’s reputation.

“Destruction” of a work in its entirety does not
amount to a violation of an artist’s moral rights because once
the work is gone, there is no possibility of the author’s
reputation being damaged by it any longer and to suggest otherwise
would problematically allow for the preservation of an artist’s
moral rights even after their work no longer exists. However, in
the past, Canadian courts have awarded damages to artists for the
destruction of a large portion of their work, categorizing the
almost complete demolition as “mutilation” of the work
that amounts to a violation of an artist’s integrity (see:
Vaillancourt c Carbone 14, [1998] JQ no 3905). The
question then becomes whether the right of integrity would allow a
graffiti artist to claim an infringement of their moral rights if
someone were to “mutilate” or deface their work.

The answer is that it is possible. The Canadian courts have not
yet had any cases before them that would allow them to decide on
this issue, but if it were to come before them, it is possible that
they could view graffiti in the same way that they view other
artistic works and afford it the same protections, even with
regards to moral rights. However, it is also possible that the
courts could offer graffiti copyright protection, but treat it
similarly to copyrightable works like obscene materials. Canadian
courts have found that copyright can subsist in obscene materials,
but they have limited the remedies available for the infringement
of said materials (see: Aldrich v One Stop Video Ltd,
[1987] BCJ No 1035). The similarly oftentimes criminal nature of
graffiti and the fact that the mutilation of graffiti could
arguably be an act that does not damage a graffiti artist’s
reputation in the same way as the mutilation of another
artist’s work could potentially mean that courts would be
reticent to grant a graffiti artist all of the remedies that are
normally available to artists whose rights are infringed.

Takeaways

The extent of a graffiti artist’s right to protection and
remuneration in relation to any infringement of their work will
most likely eventually have to be determined by the Canadian court
system, but in the interim, those who are looking to either use
graffiti in the background of videos or photography or perhaps
looking to publicly alter or deface someone’s already created
graffiti work should be mindful that doing so could potentially
engage the rights of the graffiti artist.

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.