THE RELATIONSHIP BETWEEN STREET ART AND FREEDOM OF PANORAMA UNDER UK LAW.
| Author | Barra, Francesca |
ABSTRACT
The rapid development of communication technology has facilitated the reproduction and sharing of images of public spaces, including works of art. As an exception to copyright protection, some countries have adopted legislative provisions implementing the so-called freedom of panorama'. These provisions usually allow the reproduction of works that are in public spaces, without the necessity to ask for the copyright holder's permission and pay royalties.
In the UK, freedom of panorama was introduced by section 62 of the Copyright, Designs and Patents Act. The scope of this provision is quite limited, as it concerns only three-dimensional art, and excludes newer forms of art, such as street art, which are becoming increasingly popular. This article attempts to highlight some of the inconsistencies in the UK copyright regime by using street art as a 'legal food for thought in fact, given its particular features (for instance, anonymity or illegality in the creation of murals), street art poses open questions to intellectual property law, such as: (i) qualification for copyright protection, (ii) ownership of the tangible embodiment, and (Hi) possibility to extend copyright exceptions by analogy.
Specifically, this paper concludes that the impossibility to stretch the scope of section 62 of the Copyright, Designs and Patents Act causes discrepancies in the economic rights of different categories of artists: paradoxically, the legislation seems to confer a wider protection to graffiti writers than to authors of other, commissioned, public works. A possible way to overcome these inconsistencies would be to reform the exception on freedom of panorama with a view to including any 'artistic works placed in public instead of a closed list of artistic expressions.
INTRODUCTION
Alongside other fields of law (including privacy and cultural heritage protection), intellectual property has been significantly affected by the rapid development of communication technology. (1) The growth of technology allowing the easy reproduction and sharing of pictures of public spaces has led many countries to adopt legislative provisions regulating 'freedom of panorama'. These provisions usually allow the reproduction of certain works located in public spaces, without the need to seek the artist's permission and pay royalties. (2)
Freedom of panorama, or Panoramafreiheit, finds its origins in Germany in the mid-nineteenth century, and is today governed by [section]59 of the German Law on Copyright and Related Rights (Urheberrechtsgesetz). In UK law, the right can be found in section 62 of the Copyright, Designs and Patents Act in 1988. (3)
THE SCOPE OF SECTION 62 OF THE COPYRIGHT, DESIGNS AND PATENTS ACT 1988
In the United Kingdom, freedom of panorama authorises the reproduction and communication through photographs or film footage of a limited range of artworks permanently located in spaces accessible to the public.
The principle is laid down in section 62 of the Copyright, Designs and Patents Act 1988 (CDPA), which provides:
This section applies to (a) buildings, and (b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public. The copyright in such a work is not infringed by (a) making a graphic work representing it, (b) making a photograph or film of it, or (c) making a broadcast of a visual image of it. The first question, then, is whether street art might fall within the categories of works covered by section 62, namely buildings, sculptures and works of artistic craftsmanship. Such art is unlikely to fall within the the scope of the term 'building' as defined in section (4) CDPA ("any fixed structure, and a part of a building or fixed structure"). The term 'sculpture is not defined in section 4 CDPA but, notwithstanding the absence of a statutory definition and considerable doubt in the case law as to precisely what it meant by the term, it seems clear that, like a building, a sculpture is a three-dimensional work. (4)
The protection conferred by section 62 appears therefore to be limited to three-dimensional works, and does not extend to two-dimensional street art such as graffiti and murals. (5) The rationale behind this exclusion was explained in a New Zealand judgment, (6) where it was stated that section 73 of the New Zealand Copyright Act 1994 (equivalent to section 62 CDPA) aims at allowing only the reproduction of three-dimensional works by making a two-dimensional derivative work so that the derivative product will not be able to recreate and substitute the original artwork.
As a result, to understand whether reproducing two-dimensional street art without the author's consent can be an infringement of copyright, it is necessary to assess first what is considered 'street art', and secondly if and to what extent this form of art is in fact subject to copyright protection. The following paragraphs will address these issues.
NEW CHALLENGES TO FREEDOM OF PANORAMA
Street Art as Legal Food for Thought
Graffiti and street art fall within the more recent forms of art that pose challenges to traditional copyright law. However, despite the fact that, by the date of enactment of the CDPA, both forms of art could be found in many UK towns and cities, neither of them is specifically mentioned in the legislation.
Some peculiarities of graffiti and street art certainly contribute to differentiate such forms of art from other art movements that are not included within section 62 CDPA (for instance, neon art and neon conceptualism). Among the most relevant traits, there are two elements: the circumstance that these artworks are often created illegally and the fact that the author is frequently an anonymous artist (or, in some cases, a group).
For these reasons, such artworks force us to reconsider how we think about copyright: they raise particular questions in terms of (i) qualification as copyrightable pieces of art, (ii), ownership and (iii) possibility to extend by analogy copyright exceptions.
We will consider these different aspects in the following paragraphs.
Graffiti and Street Art: Differences and Similarities
It is first necessary to define graffiti and street art, which are two distinct forms of art.
The word 'graffiti originates from the Italian verb 'graffiare', which means to scratch. (7) The phenomenon is ancient and can be seen in the wall paintings that were found in catacombs in Rome, Pompeii and Greece and in the Palaeolithic Lascaux caves: (8) those writings were initially made by scratching the wall with stones. Nowadays, although the term graffiti no longer indicates scratching of urban surfaces, it is still associated with signs made on facades or other urban surfaces. Usually those signs are so-called 'tags' made by using letters. Street art, on the other hand, focuses on images and drawings rather than words. (9)
While graffiti is still considered an urban phenomenon, over the last few years, street art has become increasingly popular among collectors. Reputable auction houses have begun to sell street art (10) and also provide assistance in buying such art. (11) This is happening not only in the United Kingdom but also in other countries such as France, where some of the famous Parisian auction houses (among others Tajan, Aguties or Cornette de Saint Cyr) have created departments devoted to street art.
Street art is becoming a valuable asset and many street artists (even those who are less well known) are taking advantage of the impressive increase in economic value of their pieces of art. Yet for some street artists, the sale of their work, particularly at auction, runs counter to the very ethos of street art and, as a result, they are generally unwilling to authenticate their pieces for auctions. However, there are exceptions, often for good causes. For instance, in 2016, Magpie, an artwork created on the front of the Magpie Social Centre in Bristol by Stik, was sold at auction by Phillips. In this regard, the artist commented:
the Magpie Social Centre was one of the free spaces that actively encouraged street art and helped me to become the artist I am today. I don't generally approve of the sale of street pieces but here I will make an exception. It gives me great pleasure to authenticate this piece so that Magpie can continue to support the next generation of artists. (12) Although street art and graffiti are conceptually distinct, they share many features: first of all, their origins. They emerged at similar times, with modern graffiti being traced back to the early 1970s in New York City, and the first UK street murals appearing in the early 1980s in the suburbs of London and Bristol.
Secondly, in general terms, they share the same tools and methods for painting and drawing. Both require instruments such as spray cans, marker pens and charcoal. (13)
Thirdly, both graffiti and street art have traditionally been considered--with few exceptions--acts of vandalism, because most such works were produced illegally. This is evidenced by the fact that some authors elaborated a specific theory regarding the connection between criminality and street art. The idea--called the 'broken window theory' (14)--was based on a suggestive metaphor: if someone walking along the street suddenly sees a building with a broken window, he/she is likely to assume that the building is abandoned. Given that nobody takes care of it, other windows can be broken easily, and more crimes can be committed there. A number of local communities embraced this approach to justify their struggle against graffiti artists. In particular, the 'Keep Britain Tidy' campaign described this theory by stating that:
graffiti affects people because it makes their neighbourhoods appear run down and neglected; creating a poor impression not only of the place but the people living there, especially to visitors. Many people also believe that graffiti...
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