If U.S. copyright law contained a general “illegality clause,” copyright would not protect works that violate other laws. These clauses are contained in other copyright and trademark laws around the world. [101] U.S. copyright law does not contain such a provision. [102] Presumably, general illegality clauses would not be accepted in an intellectual property system such as that of the United States, where the purpose of copyright is to encourage rather than discourage expression. Thirty years ago, hip-hop music was called “noise”, and graffiti will follow the same trajectory. The perception of street art has already changed radically. In Oakland, under the Panther Hollow Bridge, there is a big graffiti label that says “Disarm.” While the phrase may seem taken out of context in the middle of a peaceful park, it is likely a commentary on the hostile state of today`s world. Further down and a little out of the way, the word “lost” is engraved on a cement block with bright pink letters. Under a drainage pipe strewn with various graffiti, a bright white “god” stands out from the other labels – the halo-decorated O. Some argued that graffiti artists would likely not claim attribution, as it could attract unwanted police attention and ultimately result in criminal liability.
[174] However, this may not be the case, as the duration of VARA rights and the limitation period for VARA violations may be longer than the limitation period for graffiti penalties. [175] Therefore, an artist can apply for attribution without fear of prosecution. However, the concern about unsigned works is exaggerated. It is often easy to find the author of a work by asking the local community for graffiti artists. [150] The style, traces and colours of a work generally make it relatively easy for the artist to find; This is especially true today for online communities of local artists and digital image search tools. [151] In addition, many works are identifiable by their style, even if they are not signed, and many artists can be reached through their websites where they publish images of their works. [152] [36] “It`s a cultural landmark, not only for New York, but for hip-hop culture around the world,” says Steve Harrington, author of Street Art New York. We must protect and preserve our cultural institutions. Marlon Bishop, Queens Graffiti Mecca Faces Redevelopment, W.N.Y.C. (March 7, 2011), culture.wnyc.org/articles/features/2011/mar/07/queens-graffiti-mecca-faces-redevelopment/; see also Robin Finn, Writing`s on the Wall (Art Is, Too, for Now), N.Y. Times, August 27, 2011, at MB1, available at www.nytimes.com/2011/08/28/nyregion/5pointz-arts-center-and-its-graffiti-is-on-borrowed-time.html?pagewanted=all.
[130] In July 2011, the new owner painted the building that housed one of Bansky`s first works. The owner didn`t know the graffiti was Banksy`s, and he whitewashed the wall to prepare it for his next Muslim social center. See Banksy`s Gorilla In A Pink Mask Is Painted Over (15 July 2011), available on www.guardian.co.uk/artanddesign/2011/jul/15/banksy-gorilla-mask-painted-over. Section IV discusses the challenges artists face in enforcing their graffiti rights under the Copyright Act and the Visual Artists` Rights Act (“VARA”). I will argue that VARA can protect graffiti from alteration and destruction by third parties, but not against the owner of the wall whose property rights were violated during the creation of the graffiti. I will also argue that graffiti artists can fully enforce their attribution rights under VARA. Street art in agreed places on special posters is fine. Look at the schoolchildren`s posters on Widemarsh Street – a living contribution to the streetscape.
But make no mistake, this is not graffiti, this is street art. Banksy is a vandal, not a street artist – and essentially a good businessman. [142] See Mitchell 604 F.2d at 24; see also Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir. 1973) (stating that “fraudulent content is not grounds for denial of copyright protection for a work and is not a defense against infringement”) (citing Dream Games of Arizona, Inc. v. PC Onsite, 561 F.3d 983, 990 (9th Cir. 2009)). The owner of the wall, a victim of the graffiti crime, could possibly also demand the transfer of the profits of the graffiti (including from third parties) as compensation to the victim. See N.Y. Exec. Act § 632(a) (McKinney 2011) (under which the victim (or in some cases the state) is entitled to profits or income from the unlawful act).
In addition to the dirty hands arguments against these potential claims, however, there is a substantive limitation argument. See Simon & Schuster, Inc., v. Members of the New York State Crime Victims Vol., 502 U.S. 105, 512 (1991) (declared unconstitutional a law requiring the Crime Victims Board to pay all proceeds of a book about a crime written with the assistance of the criminal, and noted that the law “distinguished speech on a particular subject for a financial burden, which it imposes on no other speech or income. The state`s interest in compensating victims from the fruits of crime is imperative, but son Sam`s law is not closely suited to achieve this goal. Accordingly, the law is consistent with the First Amendment. “Allowing graffiti artists to create works anywhere in Hereford without legal consequences is a good idea, as it would involve the city in creativity – agree/disagree.” [165] Several details of English appear to have influenced the legal outcome more than the court expressed. First, English was preceded by a lawsuit filed by a listed garden conservation group in New York (which included some of the English plaintiffs) that tried unsuccessfully to ban the building`s development on environmental, zoning, and real estate grounds. See English v. BFC & R East 11th St. LLC, No. 97 Civ.
7446, 1997 WL 746444 at *1, n. 2 (S.D.N.Y. December 3, 1997); As for New York City coal. for the Preservation of Gardens v. Giuliani, 670 N.Y.S.2d 654 (N.Y. Sup. Ct. 1997).
The court appears to have been cautious not to apply VARA when the plaintiffs` main intentions are to stop the development of the construction for non-artistic reasons. See English v. BFC & R East 11th St. LLC, No. 97 Civ. 7446, 1997 WL 746444 at *1 (S.D.N.Y. December 3, 1997). Second, the murals at stake were not destroyed or touched, but were removed from the public space by the construction of the building.
Id. to *3. VARA does not prevent modifications based on the location or lighting of a work. [83] See United States v. O`Brien, 391 U.S. 367, 376 (1968). Freedom of expression may be ineffective against anti-graffiti laws, given that these laws “[. important or essential interests of government,” and these interests “have nothing to do with the suppression of freedom of expression,” id. at 377; and “the occasional limitation of the so-called freedom of the First Amendment is no greater than is essential to promote that interest.” [93] It should be noted that any government sanction involving the removal of copyright could cause pre-emption problems. See Garner v.
Teamsters, 346 USA 485, 498 (1953) (noting that “when two separate remedies against the same activity come into play, a conflict [between state and federal power] is imminent”). A similar argument leads to the conclusion that additional penalties imposed on graffiti artists beyond the sanctions imposed by the criminal justice system would disrupt the “adequacy” of these penalties for crime and could undermine the legislative balance of remedies in the context of criminal vandalism and civil copyright. [72] If graffiti is sold, graffiti artists could potentially benefit from the value they add to the property of others through the doctrine of accession, according to which a person who has “taken someone else`s property and substantially altered it through his own work,” which “results in a change of identity or an increase in the value of the property, the right to property in its altered state” may belong to the improver.