Recently, Telus and MuchMusic had what they thought was a brilliant idea: a joint advertising campaign whereby they would sell photographs of downtown Toronto graffiti as wallpaper images for cellphones. They were a hit, and the plan was deemed a success.
Until, that is, Telus got a call from someone representing the creators of all those urban artworks, many of which had actually been commissioned as part of a festival.
The company had not considered the notion of copyright issues applying to graffiti in the streets. This, Telus admitted, was a big mistake, and it immediately provided compensation.
To what intellectual property rights do works of graffiti give rise? This was the central question debated recently at Art in the Streets: Graffiti’s Challenge to Intellectual Property, a panel discussion organized by the student club Rethinking Intellectual Property Policy at McGill University’s Faculty of Law.
Essentially, anytime you write something down that is original, you’ve created intellectual property rights for yourself. But we don’t always think about it that way.
With graffiti, even when companies or publications do realize they might be infringing on a copyright, they usually don’t bother finding its owner, suggested Sterling Downey (a.k.a. SEAZ), who has been a graffiti artist since the early ’90s and publishes Under Pressure magazine.
“They assume [the artists] are ignorant people with no means to legal representation,” he said.
What’s more, the graffiti in the Telus/MuchMusic case was of the legal variety — approved of in the context of a festival. When the graffiti is done illegally, say on private property, the author is far less likely to protect his or her rights to the image.
“Who would be dumb enough to claim ownership of something done illegally?” asked Downey.
In fact, as doctoral candidate Karen Crawley put it, “the illegality per se does not stop you from claiming copyright.”
However, the act of proving ownership for copyright purposes makes the artist vulnerable to a claim of destruction of property from another party, and therefore artists choose to steer clear of the legal framework they invoked simply by creating something original.
Furthermore, she noted, there is an element of free expression to graffiti that is often overlooked.
“It’s always looked at through a lens of criminality and not freedom of expression,” she said.
Freedom of expression is important, agreed Raymond Carrier, a representative of the City of Montreal with the enviable title of municipal cleanliness unit adviser, but there are limits. His job consists of trying to bring the two sides together — residents and property owners who see graffiti as a nuisance, and the artists who see it as a matter of expression.
Carrier said a working group has been struck to establish a dialogue, part of a strategy that focuses on education and awareness, as opposed to the repressive tactics such as high fines and jail time that have failed dismally in other cities.
The expression argument, he admitted, is not always easy to explain to a municipal council, but he feels the key is having all stakeholders understand the concerns of the others, and striking the right balance.
“We must nurture expression, but not to the detriment of others in society,” he said.
Renowned Montreal graffiti artist Peter “Roadsworth” Gibson countered that graffiti is a reflection of society, and that many legal forms of expression such as advertising can be more detrimental.
Cracking down on graffiti artists, he suggested, makes things worse by forcing them to eschew thoughtfully designed artwork in favor of hastily painted “tags,” which are undoubtedly less pleasing to the eye.
“Graffiti is a byproduct of human activity,” he said — a considered response to the coldness and alienation projected by the urban landscape.
But whether or not ownership is claimed by anyone, or even apparent to anyone, it exists, and copyright rests with the artist. No one can reproduce works of art without permission.
Graffiti, as countercultural and ephemeral as it may be, is art, at least as far as the law is concerned. Just ask Telus.
This article originally appeared in the McGill Reporter. http://reporter.mcgill.ca/2009/11/graffiti-urban-nuisance-or-work-of-art/