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.

A Moral Minefield

In addition to economic rights the creators of copyright works also have moral rights in regards to their creations. The strength of protection accorded to these rights however varies widely across jurisdictions which leads to the question: How strong should moral rights be?


The birthplace of moral rights. Image released to the public domain by Lokal_Profil

While the first copyright statutes were added to the books in the eighteenth century, with the British Statute of Anne, it wasn’t until almost a century later – in nineteenth century France – that the concept of moral rights for authors began to gain recognition. In general terms these moral rights aimed to protect creators and their relationship to their works by providing for rights such as paternity (the right to be attributed as the author of a work) and integrity (the right to prevent derogatory treatment of a work). Their justification was based upon the idea that an authors creations reflect to some degree the personality and reputation of their creator. There should therefore be protection for the works in order to prevent their use in a manner which would be prejudicial to their author.

It does appears that for many creators such moral rights protections are indeed important. A recent experiment conducted by a trio of American scholars, for example, found that creators would be willing to accept less money for their works rather than have them go unattributed. Also the creative commons movement, when updating their licenses in 2004, found that the majority of creators had expressly opted to require attribution from anyone subsequently using their works.

However, not all jurisdictions provide and equal level of protection for moral rights. Whilst signatories to the international Berne convention are required to establish a minimum level of moral rights protection national differences still remain starkly apparent. On the one extreme the continental European tradition – exemplified in the birthplace of the concept: France – not only holds moral rights to be perpetual, inalienable, and imprescriptible but also provides for a broader range of protections such as the right to withdraw works from circulation. On the other end of the scale the American interpretation limits protection to specific forms of visual art only (in the Visual Artists Rights Act of 1990) and even then restricts the protection to the lifetime of the creator. The UK sits somewhere in the middle, providing protection for a greater range of works than the American tradition and extending protection beyond the life of the author whilst simultaneously rejecting the idea of perpetual protection and allowing creators to waive their rights if they so wish.

Such a wide spectrum of protection highlights the international disagreement when it comes to the ideal strength of moral rights. Moving a work, for example, can violate moral rights in some jurisdictions but not others. Likewise colourising a black and white work and adding in commercial breaks  can sometimes be found problematic and other times can be held acceptable. There is no overall consensus.


Adding a splash of colour can sometimes be problematic … Available under CC BY-NC-SA 2.0 by Oneplanet Adventure

All that can be offered therefore are some points of reflection on the topic. On the one hand it can be argued that the integral connection between an artist’s works and their reputation makes the strong protection of moral rights a necessity. When works are altered their original meaning can be distorted or lost. This undermines the original intentions of the creator and potentially therefore causes damage to their reputation and legacy. Without the protection afforded by moral rights it may well be the case that some creators would never publicly release their work.

On the other hand, however, some contend that overly broad moral rights can stifle the future creativity of others and end up thus doing more harm than good. There is a clash at the core of moral rights between the rights of the original artist and the interests of society as a whole. The modification and adaptation of works, for example, can be argued to have profound artistic value. The ability to do so however conflicts with the right to integrity afforded by most moral rights regimes. If these rights continue to exist forever then future generations lose out on potentially valuable artistic contributions. Additionally the presence in several continental jurisdictions of a right to withdraw a work from circulation can see society lose items of significant cultural heritage for future generations if their creators should decide they no longer like their work. These works may already have influenced the wider cultural landscape and their loss therefore would be damaging. The rights of the author must be balanced with the wider interests of society.

Some commentators have also criticised long-lasting moral rights on the basis that the control of the work will eventually fall to heirs of the original creator – heirs who may not necessarily have any artistic understanding themselves. These heirs may therefore take decisions regarding the work on the basis of beliefs that may not necessarily match the creator’s original intentions. The wishes and opinions of the original creator will necessarily become frozen at the moment of their passing and, over time, will therefore become increasingly divorced from the contemporary context in which their work is being explored. Who is to say that the heirs to the estate will always perfectly understand what the wishes of the work’s creator would have been, had they been alive to decide for themselves?


Image available in the public domain via Wikimedia Commons

This is not merely a hypothetical problem: there have been numerous cases in which heirs have tried to limit or prevent adaptations of works long after the death of their author. The estates of playwrights such as Samuel Beckett, Bernard-Marie Koltès, and Bertolt Bercht have demanded alterations to performances of their works or even blocked them altogether. Even when unsuccessful such efforts can be time consuming to deal with: An unsuccessful challenge to the Les Miserables sequel took seven years to conclude! Whether individuals not involved in the creation of the work should be able to so strongly affect its use is debatable.

These concerns are not confined to moral rights alone: The economic aspects of copyright likewise extend beyond a creators life and fall to the control of their heirs. However these economic rights do eventually expire whilst, at least in some jurisdictions, the moral rights can continue to exist forever. It is therefore conceivable that heirs several hundred years removed from the original creator may limit the uses of their works. The further from the passing of the creator the rights survive the greater the likelihood that the sensibilities of the creator and their heirs will drift apart.

Given these concerns is it really a good idea for moral rights to last forever? This, it appears, will continue to be a question for debate for some time to come.