4 - Copyright Protection of Illegal Street and Graffiti Artworks

Summary

Although graffiti and street art are now increasingly done with permission of councils or building owners, and indeed monetized, the practice has originated illegally and is still often practiced without permission, illegality being one of the defining and attractive aspects of graffiti practice. Unfortunately, while some countries have recognized the enforceability of copyright in relation to illegal graffiti, in other countries illegal or immoral artworks may not to be protected by copyright for reasons of public policy and doctrines such as the “unclean hands” doctrine, which may potentially be applicable to illegal graffiti works. The first approach may impose excessive burden to the parties affected by the graffiti if a balance is not reached in relation to conflicting rights, including the rights of owners of the building where the art was placed to whitewash or destroy the artwork. The latter approach could sanction the unauthorized commercial exploitation of illegal street art by third parties, leaving street artists without compensation for the use of their works. This chapter argues for the need to effectively protect unauthorized graffiti by copyright law (both economic and moral rights)