Copyright is for Losers? The Turbulent World of Modern Graffiti

Last month an exhibition and auction of twenty works by the world renowned graffiti artist Banksy was held in the heart of London. The artist himself however appeared to condemn the event, which was organised without his involvement or consent, and issued a statement on his website declaring it “disgusting [that] people are allowed to go around displaying art on walls without permission”.

Whether Banksy’s protests were intended to be taken seriously or (as is perhaps more likely given their irony) humorously they bring to the fore questions of ownership and control that concern many involved in modern graffiti art. The growing trade in these works has brought some of the parties involved into conflict, with graffiti artists upset to find their pieces sold or copied without permission; locals angered by the removal of freely given art for private profit; and auction houses defending the rights of property owners to sell their graffiti covered objects without interference.

These clashes are however rarely resolved through legal actions: Banksy himself even famously declared that “copyright is for losers”. Yet with many graffiti works now worth hundreds of thousands of pounds, and the UK public increasingly accepting them as art, is it really the case that copyright has nothing to offer these creators?


Image available under CC BY-SA 2.0 by dumbonyc

As a starting point, it certainly appears that copyright in graffiti can exist. According to the UK Copyright, Designs and Patents Act 1988 copyright subsists in artistic works (amongst other categories) and “a graphic work” is considered to be a type of artistic work for these purposes. Paintings are expressly included within the non-exhaustive definition of a graphic work provided in the Act and, while the term “painting” is itself is not defined at any point, it has been suggested that its interpretation in UK case law could allow for graffiti to qualify as an artistic work under this heading.

It is important to note that, for graphic works, copyright protection can exist irrespective of their artistic quality. Furthermore, even where the graffiti has been illegally created, as is often the case, it is not necessarily barred from copyright protection as the UK copyright legislation doesn’t take into account the purpose behind the work when determining whether it qualifies for protection. Both legal and illegal graffiti thus can potentially be covered.

Provided, therefore, that the individual piece of graffiti meets the statutory requirements for copyright to arise in an artistic work – which includes, most notably, a requirement that the work be “original” – it would appear that graffiti can qualify for protection. Indeed, some commentators have even suggested that graffiti ‘tags’ could be protected in this manner as long as their presentation displays enough creativity to constitute an artistic, rather than literary, work.

Copyright will automatically come into existence where the requirements are met and will, except in certain specific circumstances, initially belong to the graffiti artist who authored the work. As a result copyright can therefore be of some use to these creators, as it grants them a number of exclusive rights including, most notably, the right to prevent others copying the work without permission.


Image available under CC BY-SA 3.0 by Bjørn Christian Tørrissen

However, while copyright allows the graffiti artist to prevent others making copies it does not allow them to stop others from selling the original, physical embodiment of the art. Most graffiti is painted onto property that belongs to a third party and, as such, the resulting object remains the property of that third party. As owner, the third party is free to do whatever they wish with it; they can remove it, destroy it, or sell it on as they please.

There have been some attempts, most notably in the US, to argue that the moral rights granted under copyright could help creators in this regard. A creator’s right to prevent the derogatory treatment of their work, it has been suggested, could potentially allow creators to resist the destruction or removal of their work. Such arguments were however unsuccessful in the US and it seems unlikely that they would fare much better in the UK, especially for works which have been created illegally.

It is worth noting though that the graffiti artists would still have the moral right, if their work is protected by copyright, to be identified as the author of their works irrespective of whether they can control their sale. However, this right must be asserted in writing by the artist before it can be infringed by others. While some graffiti artists do sign their works with their name or pseudonym, fulfilling this requirement and allowing them to assert the right, many others do not. These latter artists would have to take action in order to assert their right (in one of the manners outlined in section 78 of the legislation) before others can be found to have infringed upon it.

Also, while they may not be able to block the sale, a graffiti artist may nonetheless still be entitled to claim a royalty on the net purchase price under the Artist’s Resale Right. There are some restrictions on the circumstances in which this Right applies – the sale must be for over €1000, for example, and must be exercised through a collecting society – but nonetheless the creator could potentially be entitled to up to €12,500 in royalties, depending upon the value of the sale.


Image available under CC BY-NC-ND 2.0 by Jakub Redziniak

There is however a significant difficulty when it comes to taking advantage of these rights in practice. In order to take advantage of copyright a graffiti artist must identify themselves as the author of the piece. However, unless the property owner has given their permission for it, graffiti is illegal and can lead to criminal charges for its creators under a number of UK statutes. If an artist thus identifies themselves as the creator of a work in order to benefit from copyright protection, or to claim funds under the Resale Right, they open themselves up to fines or even jail time under the criminal statutes. Additionally, there would also be the further possibility of civil claims from the owners of the property that was defaced by the graffiti.

Even where graffiti is legally created artists can face a factual challenge proving their authorship of the piece. While there is a legal presumption of authorship for works containing a signature that claims to be of the artist, many graffiti works are unsigned. While their authors can often be identified through the distinctive styles used and their reputation in the local community proving this may be difficult in court.

Overall, it would appear that copyright is a mixed bag for graffiti artists. On the one hand copyright doesn’t allow artists to protect the physical embodiment of their original artistic works, and it can be challenging in some circumstances to take advantage of copyright in practice. On the other hand however, it can allow artists to control the copying of their work; can enable them to claim royalties when the original is resold; and, at the very least, can allow them to insist upon recognition as the author of their creations. Far from being just ‘for losers’ therefore copyright has the potential to be a useful tool for creators in what is increasingly becoming a valuable art form.

Inventing Musical Property: Mozart, Mansfield and the “London” Bach

By Chen Wei Zhu (IASH, University of Edinburgh), CC-BY-SA 3.0

One may notice that the year of 1756 is a bizarrely interesting moment in the history of Western music because of two seemingly unrelated events. The first is a well-known one that needs little elaboration: In this auspicious year, God bestowed upon us earthlings a truly god-loving music prodigy known as Wolfgang Amadeus Mozart. The second one was slightly less obvious: In this same year, William Murray, who later became 1st Earl of Mansfield, was appointed Lord Chief Justice of the King’s Bench. The significance of this event to music history could not be fully revealed until about two decades later.

So why would Lord Mansfield’s 1756 appointment have a bearing on music and musicians? Is there a connection between these two seemingly unconnected persons—a Salzburg musician who died a pauper in Vienna (i.e., Mozart) and a lawyer of Scot origin who prospered in England (i.e., Lord Mansfield)? Here is the clue: Johann Christian Bach (1735-1782). Commonly known as the “London” Bach, J.C. Bach is Johann Sebastian Bach’s youngest surviving son. He went to London in 1762 and became one of the most prominent composers in Georgian England in the second half of the 18th century, although he never did manage to match what Handel had achieved before him in the first half of the century.

(For more detail about the musico-legal landscape of J.C. Bach’s London, see The Music Trade in Georgian England as edited by Michael Kassler. Readers may also enjoy reading a recently published biography of Lord Mansfield by Norman Poser, whose erudite but lucid style provides a good background.)

JC Bach’s tombstone at St Pancras Old Church, London. Photo available under CC–BY–SA 3.0 by Chen Wei Zhu

J.C. Bach did not only tremendously influence Mozart’s Classical style after the young prodigy’s grand tour to London from 1764 to 1765. Equally important to our story Bach, as Mozart’s life-long friend and mentor, also happened to be the plaintiff in Bach v Longman, where Lord Mansfield was asked to adjudicate a dispute concerning Bach’s music under English copyright law. The 1709 Copyright Act (Statute of Anne) only mentions “books and other writings” as a protected subject matter, therefore it was not clear whether this Act also applied to music. In his landmark ruling handed down in 1777 (21 years after Mozart’s birth), Mansfield made it clear that copyright was “not confined to language or letters” but that it also subsisted in a composer’s sheet music under the Statute of Anne:

“Music is a science; it may be written; and the mode of conveying the ideas, is by signs and marks. A person may use the copy by playing it; but he has no right to rob the author of the profit, by multiplying copies and disposing of them to his own use. If the narrow interpretation contended for in the argument were to hold, it would equally apply to algebra, mathematics, arithmetic, hieroglyphics. All these are conveyed by signs and figures. There is no colour for saying that music is not within the Act.”               Bach v. Longman (1777) 2 Cowp. 623

Entrance to St Pancras Old Church (in 2013), where JC Bach and his music partner Carl Friedrich Abel (1723-1787) were buried. On 28th July 1968, the Beatles also visited this Church during their “Mad Day Out” in London. Photo available under CC–BY–SA 3.0 by Chen Wei Zhu

Although this record of Mansfield’s ruling is short and pithy, it opens up two interesting questions that will forever puzzle future generation copyright lawyers as well as musicologists. The first question concerns the ontological meaning of “music”: it simply asks what is meant by “music”? The second deals with proprietary nature of composers’ creation: can music be owned and traded as creators’ commercial property?

For the first question, Mansfield likened music to “books and other writings” which can be notated down as “signs and marks”. In doing so, he restricts “music” to be scores or sheet music that can be read and written like books. However, Mansfield fails to notice that music may also be experienced and consumed as a sonic object for its own sake. His definition does not see “sound” (as opposed to “signs and marks”) as at the centre of music copyright. Modern copyright jurisprudence tends to deviate from Mansfield’s definition of music towards a more “sound”-oriented understanding. For example, Lord Justice Mummery argues, in Sawkins v Hyperion(2005), that the essence of music is effectively about “combining sounds for listening to”.

In terms of the second question, Mansfield seems to have no qualms about music becoming profit-making property. Just like a book that can be owned and traded by its author, music is now the property of a composer and the non-owning public “has no right to rob the author of the profit”. This view is largely consistent with Mansfield’s historical role as a champion of strong property as a foundation of commerce and trade. However, Mansfield’s emphasis of property may lead to overlooking the often messy and anomalous nature of music creativity, which thrives not because, but in spite of, a strong property system.

The sad story is that winning this particular case seems to have been only a one-off courtroom success for J.C. Bach, who failed to be further incentivised to develop a fully-fledged Classical style in music. Bach never managed to move out of his own creative comfort zone, which is a pre-Classical style called style galant. The task of forging and perfecting the Classical style was later fulfilled by, amongst others, his student Mozart. Charles Sanford Terry, in a biography written in the 1920s, laments that J.C. Bach “has slumbered in a neglected grave” compared with his other brothers’ (especially C.P.E. Bach) musical achievement. John Small (1985, The Musical Times, pp.526-529) comments, along a similar line, that Johann Christian is now largely remembered as “Bach the litigant” because of his lawsuit, but not “Bach the musician”.

Dr. Chen Wei Zhu is currently a Postdoctoral Fellow in the Institute for Advanced Studies in the Humanities (IASH) at the University of Edinburgh.