The Eagle swoops, the Eye Droops: graffiti goes to court

"Graffiti copyright battles pitch artists against advertisers" is the title of a fascinating piece by this blogger's friend Enrico Bonadio (Senior Lecturer in Law, City University, London), where he teaches Intellectual Property Law and EU Law. Enrico's piece reads as follows, in relevant part (minus links):

" ... A legal row between Miami-based street artist Ahol Sniffs Glue (“Ahol” – or David Anasagasti to his mother) and the clothing retailer American Eagle Outfitters is the latest instance of a growing number of spats. The artist recently sued for copyright infringement in a US federal court after American Eagle began using his work in their promotional material.

Ahol is known for his signature “droopy eyes”, variants of which appear all over Miami. Earlier this year, when looking to support its spring collection advertising with an eye-catching urban touch, American Eagle started using Ahol’s artwork. Droopy eyes popped up on its web adverts, billboards and in-store displays worldwide as well as on Instagram, YouTube and in storefronts across the world. At an opening in Colombia, the store even allegedly hired local street artists to recreate Ahol’s original, complete with American Eagle logo.

One of the images the multinational company used on its billboards depicts a male model wearing American Eagle clothes while standing in front of a legal mural by Ahol named Ocean Grown, after a gallery that commissioned and hosts the work. In the most brazen touch of all, the model carries a spray paint can. Clearly the advertising is not just looking to appropriate the visual effect of the nice background; it’s attempting to grab some of street art’s illicit cool by implying the model had painted the work himself.

... 

Paintings on walls are no different from other artistic works – and they therefore satisfy the requirements for copyright protection, including originality. This it particularly true of legal graffiti works such as the ones created by Ahol in Miami and (mis)appropriated by American Eagle. It would make no sense to deny copyright protection to works that have been legally commissioned.

But still, even illegal graffiti deserves copyright protection. Possible wrongdoings committed by street artists (trespass, vandalism and so on) concern the process through which the works are done: painting on a wall or train, for instance, without the authorisation of the property owner. ...

Street artists thus might find in copyright law an ally, a friend that can help them in giving added value to their works and reacting to “art stealers” and (why not?) making money out of their job, and their passion".

Copyright should be the ally of every artist, and the fact that the graffiti constitutes a criminal act of vandalism or unlawful interference with property should not affect that.  But there is a sense in which unauthorised and uncommissioned graffiti is somehow "public" property too. One can understand why the owner of the wall or other medium (train, truck or whatever) might feel entitled to indulge in some exploitation of a work, commercial or otherwise, if it has been foist upon him against his will -- but why should a third party such as the proprietor of a garment brand be so entitled?

Thanks are due to Chris Torrero for supplying the relevant link.

Fight over 5 Pointz ends with dirty tactics - whitewash

For artists battling to save 5 Pointz - reported here - it must have been heartbreaking to wake up to these scenes:



After the Federal Court ruling last week, refusing to grant an injunction to stop the demolition of 5 Pointz, the building owners appear to have taken matters into their own hands. They hired a crew of painters who worked through last night to whitewash the walls of 5 Pointz - covering up years of stunning street art, paintings and murals.

So much for the rights of the artists. No moral rights, just outrage.


 Photos by Tiernan Morgan

Artists fight for 5 Pointz

A group of street artists in New York have grouped together to fight the demolition of Long Island warehouse complex 5Pointz.

5Pointz - named in the claim as the "Mecca of the Aerosol Art World" - has been used by graffiti artists for the past 20 years to display their works. Artists were not only allowed to paint on the buildings, but there was an unofficial aerosol art program at 5Pointz whereby one of the plaintiffs was appointed by one of the the defendants to curate and manage the program.

In 2010, however, the owners of the site started at looking at the sale and redevelopment of the buildings after the NYC Buildings Department issued an order to close the largest of the buildings, as well as citing a number of violations including unsafe conditions. Then, earlier this year, the owners announced plans to demolish 5Pointz to make way for a luxury residential apartment development.

In an attempt to save the complex and their works, the artists have filed claims under the US Visual Artists Rights Act ("VARA") and copyright law. They argue that their pieces, paintings and murals on or at 5Pointz are each “works of visual art” within the meaning of VARA, and constitute copyrightable subject matter. Accordingly, the plaintiffs' honour and reputation as artists (ie. moral rights) will be damaged if the defendants destroy 5Pointz, thereby destroying the artists' works without their consent.

On 17 October 2013, the artists won the first round in the battle with Federal Court Judge Frederic Block granting a temporary restraining order prohibiting any demolition activities by the defendants in relation to the building, as well as prohibiting all painting on the building by the plaintiffs, for 10 days. This order expired on 28 October. The next round has now also gone to the artists who succeeded, this week, in getting the judge to extend the TRO for a further 14 days.

The next hearing of the case is scheduled for 6 November.

"Drunken Bulbs" by Jonathan Cohen - one of the many works at 5 Pointz cited in the claim 

Read the full claim here.

Iconic artwork, graffiti tags and a distorting Lens

"Delacroix Liberty painting defaced in Louvre" was the headline of a recent BBC news item. The painting in question is portrayed above.  According to the article:

"French police have detained a woman accused of defacing an iconic Delacroix painting, Liberty Leading The People, at a branch of the Louvre Museum.She was held after being seen scrawling a graffiti tag on the painting, a Romantic masterpiece painted in 1830 to celebrate a French uprising. The museum in the northern town of Lens said the work might easily be cleaned but would be examined by a restorer. ...

The painting by Eugene Delacroix, which featured on the pre-euro, 100-franc French banknote and reportedly inspired the Statue of Liberty in New York, is being exhibited in Lens for a year.French media quoted unnamed legal sources as saying the graffito was a clear reference to a 9/11 conspiracy theory. ...

Just before closing time the previous day, a 28-year-old woman scrawled the 30cm (12in) graffito on the bottom of the painting and was immediately detained by a museum guard, France's 20 Minutes news website reported.

The work itself, which commemorates the July Revolution of 1830, measures 325cm by 260cm.

The mark may be "easily cleaned" but a restoration expert was being sent from the parent museum in Paris, the museum said in a statement.

No decision has yet been taken on whether the painting will have to be removed, the museum was quoted as saying by French broadcaster France 3.

The local prosecutor, Philippe Peyroux, told AFP news agency that the woman in custody appeared to be "unstable" and that he had requested a psychiatric examination. He added that the woman, whose identity has not been released, had a "French-sounding name ..."

Iconic? The parodic effect can be seen as far away
as Australia. See Saddami's Graffiti here

The painting's iconic status may have made it an attractive target for anyone wanting to publicise a 9/11 conspiracy theory, but there are better ways of getting a message across than defacing the original.  The painting is out of copyright and can thus be modified or otherwise exploited without the need to prevent others enjoying the original, as the examples above and below show:

Here's another contemporary take, this time
from Still Full of It

Exercises like this not only strengthen the ability of the original to serve as a reference point but attract copyright in their own right as original artistic works or emanations of the author's own intellectual creation. If the lady with the French-sounding name had imposed her graffiti tag on a copy and pushed it out on to the social media, with some prospect of it going viral, she might have achieved not only more publicity but more positive publicity too.

Graffiti and copyright law: a new article

A 42-page draft article, "Outlawed Art: Finding a Home for Graffiti in Copyright Law", by Nicole A. Grant (Columbia University, Law School), has been posted on SSRN (click here for details).

The abstract of this thoughtful illustrated article reads as follows:

"An intractable tension exists between the existence of graffiti as iconoclastic youth expression and the emergence of its recognition as an art form, and the boundaries of American copyright law. As graffiti gains more traction in the mainstream art world, copyright law has come to frame much of the discussion surrounding the rights that stem from (and that are overlooked by) the creation of these works. While graffiti is heralded for its uniqueness, it also thrives in a culture of appropriation that encourages dialogue among graffiti artists, in addition to establishing as the norm the pilfering of everyday cultural referents for artistic use. On the one hand, the [United States] Copyright Act grants protection to all original works of authorship fixed in a tangible medium of expression, which ostensibly could include illegal works of graffiti. On the other hand, the rights that could be extended to graffiti artists are limited by the nature of graffiti itself - by virtue of its illegality, there is the risk that works lose a layer of protection when pitted against the property owners whose buildings act as unwitting canvases, and other artists from whom a graffiti artist/secondary user culls material for his own work. This Paper addresses the competing interests and tensions that arise from these considerations, ultimately asking the question whether copyright law can find any coherence in the culture and art of graffiti".

Illegal illegal art

An interesting report concerning a German documentary about graffiti artists in Berlin has surfaced this week.

The producers of the documentary, entitled Unlike U – Trainwriting in Berlin about [you probably guessed it] graffiti on the Berlin subways, have made a full version of their film available online following a legal claim by the Berlin transport company, BVG, seeking to prevent the film from being distributed.

The basis for BVG's claim is reportedly that the filmmakers and their distributor did not obtain filming permits for to shoot footage at train stations and on other premises owned by BVG. In response, the filmmakers have said that they did not actually shoot any of the clips - said to demonstrate the dangerous lengths to which the graffiti artists go to paint Berlin 's trains, including sneaking through underground tunnels and climbing over high-voltage electric third rails to get onto the platforms [see picture]. Instead, they say, all of the footage was submitted to them by the trainwriting crews responsible for the graffiti shown in the film.


Rather than wait for the verdict of the German court, however, the producers decided to make the whole film available since they "spent a lot of time and put in a lot of lifeblood on working on that movie [and so] would like to give everybody the opportunity to see the outcome."

This situation therefore raises a number of interesting issues:
- is the art illegal?
- is it illegal to film someone carrying out an illegal activity?
- is it illegal to distribute a film made without filming permits?

Clearly, in this case the answers depend on the German law. If anyone has any more information in relation to the claim, or general opinions on the legal issues I would be very interested to receive it.


For more information on the film see here.
To help the filmmakers defend their claim go here.
To watch the movie go here.

Source: GigaOm, 5 December 2011

The good, the bad and the four-man control unit: graffiti in Cape Town

"Cape Town city and graffiti artists face spray-off", an article by Justine Gerardy (AFP), raises questions concerning the work of South African graffiti hero Falko Starr (right), whose large-scale oeuvre has come under threat from a new four-man control unit and by-law that classifies all graffiti as a public nuisance. First-time offenders are liable to pay a fine of up to 15,000 rand or receive three months in jail.

The stated aim of this law is to eliminate tagging (individual graffiti signatures), particular that which is classified as "gangster tagging" and offensive graffiti. Cape Town city official Anton Visser adds "The intention is obviously not to target the graffiti artists" such as Starr. An obvious problem, though, is how to set a legal dividing line between 'good' graffiti and 'bad'.

Remarkably, the law sets out a permit system for city-vetted works. The extent of legal invasion of private property rights is considerable, since even private property owners may not host graffiti on their properties without city permission.

Starr, a professional graffiti artist and the creator of the "Splitpiece" installations, is perhaps the most prominent of an estimated 100 to 200 graffiti writers in Cape Town. He explains that Cape Town's graffiti culture grew from the era of apartheid, when it had a more political function and content. Now the argument turns on whether the need for self-expression is of a higher value than the appreciation of Cape Town's natural aesthetic beauty.

Some of Starr's work can be viewed on YouTube here

Graffiti hits the streets ... of Moscow

Graffiti as an urban art form has now reached Moscow, which is good news for artists. It was once good news for enforcement agencies too. According to a NY Times feature,

“It is especially tough to be a graffiti artist in Russia,” said Oxana Bondarenko, a curator who specializes in street art and lives in Paris and Moscow. “The state invests millions of rubles in hunting down graffiti artists and painting over the works.”

According to Sergey Glandin, a lawyer in Moscow, there is no law specifically regulating street art, but those caught making graffiti can be penalized under the criminal code. In most cases, this means an arrest and a warning ...

Wall of Tsoi, Arbat St, Moscow (fom Kitbag)

Make, an old-school graffiti artist who in 2000 created the first Russian graffiti crew, RUS, says that street art is important because it can show the local population’s own, uncensored voice, and it can push artists to express their own vision. RUS made a name for itself by being especially daring, he said, painting regional trains with illustrative, pictorial tales and American-inspired graffiti. “We were caught by the police several times,” he said with a hint of pride. (They were arrested but released soon after).

Today, Make has evolved into a respected artist, has had solo exhibitions in Moscow and abroad, and last year was a finalist for the national Kandinsky art prize. Some of his recent work is reminiscent of Russian constructivist art and, provocatively, Communist propaganda ....”

Source: "Graffiti Art Earns New Respect in Moscow", Alice Pfeiffer, NY Times, 13 October 2010, here