This piece seeks to demonstrate the striating role of property within street art and graffiti, creating a threshold where criminal and intellectual property meet to both outlaw and protect street art at the same time. Street art reveals a legal vacuum for poiesis, protest and property on the threshold of aesthetic and juridical legitimacy and illegitimacy, illustrating where law means all and nothing at once. Legal sanction is argued as affecting the aesthetics of street art, where criminalisation protects the rights of property owners over the creative rights of artists, reasserting the exclusionary nature of law, intertwined with reasserting the ‘outsider’ nature of their art. This is argued as not coincidental but that notions of aesthetics are not only prioritised by the art ‘establishment’, but also supported by law, to the detriment of other forms of aesthetics such as street art and graffiti. As such, street art and graffiti reveals the elixir of property in both the art and legal establishments, coming to pass as a result of violent histories of expropriation through art property and real property. Ultimately, street art and graffiti is argued as a protest against the legal-aesthetic hegemony, the analysis of criminal, real and intellectual property meeting points telling us more about the congenital role of art in law and vice versa than solely explaining the legalities of random acts of illicit expression.
- Legality and illegality of art
- Freedom of expression
If graffiti changed anything, it would be illegal.
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Gomez (1993) presents a dichotomous categorisation of graffiti—‘graffiti art’ and ‘graffiti vandalism’.
Jean Dubuffet coined the term art brut, translated by Roger Cardinal in the 1970s as ‘outsider art’ (1972).
Scots Law similarly prescribes the control of graffiti and street art under the Anti-Social Behaviour Act (Scotland) 2004 ss. 58–61.
The 1709 Copyright Blog cites McDonald’s intentional falsified copyright management information as a violation of 17 U.S.C. § 1202 ‘which forbids anyone to knowingly and intentionally, in order to induce, enable, facilitate, or conceal infringement, to provide false copyright management information’, and this argument has also been made by graffiti artists Revok and Steel of graffiti crew MSK in their copyright infringement suit against Roberto Cavalli (Williams, Chapa, and Rubin v. Cavalli) (Central Dist. Of CA, 2014) (Weiss 2017).
Recent US examples other than Jade Berreau v McDonald’s are: Anasagasti v. American Eagle Outfitters, Inc., No. 1:14-cv-05618 (S.D.N.Y. Jul 23, 2014); Hayuk v. Sony Music Entertainment et al, No. 1:14-cv-06659 (S.D.N.Y. Aug 19, 2014); Miller v. Toll Brothers, Inc., No. 1:15-cv-00322 (E.D.N.Y. Jan 21, 2015).
UK, Defined by Copyright Designs and Patents Act (CPDA) 1988, (1) in this Part “artistic work” means—
a graphic work, photograph, sculpture or collage, irrespective of artistic quality;
a work of architecture being a building or a model for a building; or
a work of artistic craftsmanship.
Article 2 of the Berne Convention states: “[T]he expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as […] cinematographic works […] works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works […] works of applied art […]”
Bonadio (2014) refers to cases in the US, such as English v BFC&R E. 11th St LLC, where the question raised by defendants was, since it was illegal to place a mural graffiti work, it should be excluded from the copyright protection, as well as Mitchell Bros. Film Group v Cinema Adult Theater, in which the obscenity of a work was taken into consideration when claiming validity of protection and copyright infringement.
A famous demonstration of this is the case of the ‘Monkey Selfie’ Naruto v Slater (2016), where the plaintiff PETA acted on behalf of Naruto (the monkey who had taken a photo of himself using photographer David Slater’s camera), claiming that the monkey selfie pictures came ‘from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by Naruto’ (Guadamuz 2017). PETA were deemed not to have standing to represent Nurato and, as Guadamuz explains, the copyright subsists with the photographer Slater, given the ‘sweat of the brow’ argument.
Perhaps the most potent form of protest, following a long tradition of Temporary Autonomous Art that thrives on its impermanence, is exemplified in artist Blu’s destruction of his own work in protest against the local authorities in Bologna’s hypocritical stance towards street art and graffiti as they opened their doors to a bank-sponsored exhibition ‘Street Art Banksy & Co’ in 2016 whilst exerting draconian criminalisation of street artists and graffiti writers: ‘We are faced with arrogant landlords who act as colonial governors and think they’re free to take murals off our walls. The only thing left to do is making these paintings disappear, to snatch them from those claws, to make hoarding impossible’ (Vogt 2016). Forget the removal of works by the owners in realty, but the invisibalisation of art by the artists themselves.
Defined in leading UK case Walter v. Lane, EU ruling Football Dataco Ltd and Others v Yahoo! UK Ltd and Others - C-604/10 - Football Dataco and Others; and in the US - Feist Publications v Rural Telephone Service Co 499 US 340 (1991) 113 L Ed 358 (1991) (Sup Ct) at 369 (found at Stokes 2014).
Right to protest claims under the Human Rights Act 1998 (Articles 10 and 11, freedom of expression and freedom of assembly) in the UK context have thus far proven fruitless coming up against the rights of the landowners on whose land protests have been occurring as per City of London Corp v Samede , demonstrating the striating role of property in expression not confined to the placement of art in the street. However, where right to private and family life under Article 8 arguments have been used, one can see the development of precedent around the use of the article, a defence in protests on private land can be engaged where the rights of the protestors may have the potential to trump the Article 1 Protocol 1 right of peaceful possession of property by the landowner in ‘exceptional circumstances’ (Manchester Ship Canal Developments Ltd v Persons Unknown ; Malik v Fassenfelt ).
Arnheim, R. (1971). Entropy and art: An essay on order and disorder. Berkeley: University of California Press.
Barthes, R. (1991). Cy Twombly: Paintings and drawings 1954–1977. New York: Whitney Museum of American Art.
Baudrillard, J. (1993). Kool killer. Paris: Editions.
Becker, H. (2008). The outsiders: Studies in the sociology of deviance. London: Simon and Schuster.
Bird, S. (2009). Aesthetics, authority and the outlaw of the street. Public Space: The Journal of Law and Social Justice, 3(3), 1–24.
Bonadio, E. (2014). Who owns street art? Retrieved February 9, 2017, from http://www.city.ac.uk/news/2014/sep/who-owns-street-art.
Bonadio, E. (2017). Copyright protection of street art and graffiti under UK law. Intellectual Property Quarterly. Retrieved February 9, 2017, from http://openaccess.city.ac.uk/16217/.
Buffenstein, A. (2016, October 16). Dash snow’s family sues for copyright infringement. Artnet. Retrieved February 9, 2017, from https://news.artnet.com/art-world/dash-snows-family-sues-mcdonalds-copyright-infringement-685901.
Cardinal, R. (1972). Outsider art. London: Studio Vista.
Cresswell, T. (1996). In place/out of place: Geography, ideology, transgression. Minnesota: University of Minnesota Press.
Davies, M. (2007). Property: Meanings, histories, theories. London: Routledge Cavendish.
Davies, M. (2008). Asking the law question (3rd ed.). Sydney: Lawbook Co.
Doomsbury Set. (2016). Open arts surgery. Retrieved February 9, 2017, from http://openartsurgery02.blogspot.co.uk/.
Edwards, I. (2009). Banksy’s graffiti: A not-so-simple case of criminal damage? Journal of Criminal Law, 73(4), 345–361.
Ferrell, J. (1996). Crimes of style: Urban graffiti and the politics of criminality. Boston: Northeastern University Press.
Finchett-Maddock, L. (2016). Protest, property and the commons: Performances of law and resistance. London: Routledge.
Fiske, J. (1999). Television culture. London: Routledge.
Girard, R. (1977). Violence and the sacred. Baltimore: John Hopkins University Press.
Gomez, M. (1993). The writing on our walls: Finding solutions through distinguishing graffiti art from graffiti vandalism. University of Michigan Journal of Law, 26(3), 633–707.
Griffin, J. (2010). Illegal graffiti: A copyright perspective. Intellectual Property Law Bulletin, 22, 123–155.
Guadamuz, A. (2017). The monkey selfie: Copyright lessons for originality in photographs and internet jurisdiction. Internet Policy Review, 5(1), 1–12.
Halsey, M., & Young, A. (2006). Our desires are ungovernable. Theoretical Criminology, 10(3), 276–277.
Hopes and Fears. (2017). What are the Penalties for Graffiti around the world? Retrieved February 9, 2017, from http://www.hopesandfears.com/hopes/city/city_index/168925-penalties-for-graffiti.
Iljadica, M. (2015). Graffiti and the moral right of integrity. Intellectual Property Quarterly, pp. 1–23.
Iljadica, M. (2016). Copyright beyond the law: Regulating creativity in the graffiti subculture. London: Bloomsbury Publishing.
Jones, J. (2004). Dim, cloned conservatives: Modern graffiti is not subversive – it is a formulaic, bankrupt cliché. The Guardian. Retrieved February 9, 2017, from https://www.theguardian.com/politics/2004/aug/07/arts.ourcritics.
Lambert, L. (2013). Weaponised architecture: The impossibility of innocence. Barcelona: DPR.
Lasn, K. (2000). Culture jam: How to reverse America’s Suicidal Consumer Binge – and why we must. New York: Quill.
Lorand, R. (1994). Beauty and its opposites. The Journal of Aesthetics and Art Criticism, 52(4), 399–406.
Macmillan, F. (2007). Altering the contours of the public domain. In C. Waelde & H. MacQueen (Eds.), Intellectual property: The many faces of the public domain. Cheltenham: Edward Elgar.
Markel, D. (2000). Can intellectual property law regulate behaviour? A ‘Modest Proposal’ for weakening unclean hands. Harvard Law Review, 113, 1503–1520.
Maxwell, T., Shaw, B., & Bruce, A. (2015). Who owns street art? Law Gazette. Retrieved February 9, 2017, from https://www.lawgazette.co.uk/practice-points/who-owns-street-art/5051041.article.
McIntyre, I. (2013). How to make trouble and influence people: Pranks, protests, graffiti, and political mischief-making. London: PM Press.
Mead, D. (2010). The new law of peaceful protest; rights and regulation in the human rights act era. London: Hart Publishing.
Mettler, M. (2012). Graffiti museum: A first amendment argument for protecting uncommissioned art on private property. Michigan Law Review, 111(2), 249–281.
Millie, A. (2008). Anti-social behaviour, behavioural expectations and an urban aesthetic. British Journal of Criminology, 48(3), 379–394.
Mulcahy, L., & Flessas, T. (2016). Limiting law: Art in the street and street in the art. Law, Culture and the Humanities, pp. 1–23. https://doi.org/10.1177/1743872115625951.
Nandrea, L. (1991). Graffiti taught me everything I know about space, urban fronts and borders. Antipode, 31(1), 119–116.
Rancière, J. (2005). From politics to aesthetics. Paragraph, 28 (1). Retrieved February 9, 2017, from http://www.euppublishing.com/doi/pdfplus/10.3366/para.2005.28.1.13.
Rychliki, T. (2008). Legal questions about illegal art. Journal of Intellectual Property Law and Practice, 3(6), 393–400.
Salib, P. N. (2016). The law of banksy: Who owns street art? University of Chicago Law Review 83(4). Retrieved February 9 2017, from https://ssrn.com/abstract=2711789.
Schacter, R. (2014). Ornament and order: Graffiti, street art and the parergon. London: Routledge.
Sennett, R. (2008). The craftsman. New Haven: Yale University Press.
Spyer, P. (1998). Border fetishisms: Material objects in unstable spaces. London: Routledge.
Spyer, P. (2008). Christ at large: Iconography and territoriality in postwar Ambon. In V. de Hent (Ed.), Religion: Beyond a concept. New York: Fordham University Press.
Stokes, S. (2014). Digital copyright: Law and practice. London: Bloomsbury Publishing.
StreetLaw. (2014). Retrieved February 9, 2017, from https://streetlawbrighton.wordpress.com.
The Crime Prevention Website, Graffiti. (n.d.). Retrieved February 5, 2017, from https://thecrimepreventionwebsite.com/garden-boundaries-fences-and-defensive-plants/681/graffiti/.
Vazquez, R., & Mignolo, W. (2013). “Decolonial AestheSis”: Colonial wounds/decolonial healings. Social Text. Retrieved February 9, 2017, from http://socialtextjournal.org/periscope_article/decolonial-aesthesis-colonial-woundsdecolonial-healings/.
Vogt, A. (2016). Graffiti artist destroys his own work after his art was removed from original locations. The Telegraph. Retrieved February 9, 2017, from http://www.telegraph.co.uk/news/worldnews/europe/italy/12192754/Graffiti-artist-destroys-own-work-after-his-art-was-removed-from-original-locations.html.
Watson, M. (2004). Graffiti: Popular art, anti-social behaviour or criminal damage? Criminal Law and Justice Weekly, 35(168), 668–670.
Weiss, M-A. (2017). A big tag with fries and a can of spray. The 1709 Blogspot. Retrieved February 9, 2017, from http://the1709blog.blogspot.co.uk/2016/10/a-big-tag-with-fries-and-can-of-spray.html.
Wilson, J. Z. (2014). Ambient hate: Racist graffiti and social apathy in a rural community. The Howard Journal, 53(4), 377–394.
Wilson, J., & Kelling, G. (1982). Broken windows. Atlantic Monthly, 249(3), 29–38.
Young, A. (2000). Aesthetic vertigo and a jurisprudence of disgust. Law and Critique, 2000(11), 241–265.
Young, A. (2005). Judging the image. London: Routledge.
Young, A. (2012). Criminal images: The affective judgment of graffiti and street art. Crime Media Culture, pp. 1–25.
Young, A. (2013). Street art, public city: Law, crime and the urban imagination. London: Routledge.
Young, A. (2016a). Commodifying banksy. The Conversation. Retrieved February 9, 2017, from https://theconversation.com/commodifying-banksy-66679.
Young, A. (2016b). Street art world. London: Reaktion Books.
Creative Foundation v Dreamland Leisure Ltd Chancery Division  EWHC 859 (Ch)
Creative Foundation v Dreamland Leisure Ltd Chancery Division  EWHC 2556 (Ch)
Manchester Ship Canal Developments Ltd v Persons Unknown  EWHC 645 (Ch)
R v Ruth (Tobias Daniel)  EWCA Crim 546
Malik v Fassenfelt  EWCA Civ 798,  3 E.G.L.R. 99
City of London Corp v Samede  EWHC 34 (QB)
R. v Brzezinski (Tomaosz Adam)  EWCA Crim 198
R. v Moore (Samuel George) EWCA Crim 1100
Harrison v Harrison  FSR 25
R. v Dolan (Thomas James)  EWCA Crim 2791;  2 Cr. App. R. (S.) 11 (CA (Crim Div))
DPP v Shoan  VSCA 220
R v Fiak  EWCA Crim 2381
Whiteley (1991) 93 Cr App R 25
Morphitis v Salmon  Crim LR 48
Hardman v Chief Constable of Avon and Somerset  Crim. L.R. 330 (Crown Ct (Bristol))
Roe v Kingerlee  Crim LR 735-6
Snow v The Eaton Centre  70 CPR (2d) 105
Jade Berreau v McDonald’s Corporation, 2:16-cv-07394 (Central District of California)
Naruto, et al. v. Slater, et al., no. 15-CV-04324 (N.D. Cal. January 28, 2016)
Miller v. Toll Brothers, Inc., No. 1:15-cv-00322 (E.D.N.Y. Jan 21, 2015)
Williams, Chapa, and Rubin v. Cavalli (Central Dist. Of CA, 2014)
Anasagasti v. American Eagle Outfitters, Inc., No. 1:14-cv-05618 (S.D.N.Y. Jul 23, 2014)
Hayuk v. Sony Music Entertainment et al, No. 1:14-cv-06659 (S.D.N.Y. Aug 19, 2014)
Cohen v. G&M Realty LP, 988 F. Supp. 2d 212, 214, 109 U.S.P.Q.2d 1869 (E.D.N.Y. 2013)
English v BFC&R E. 11th St LLC
Mitchell Bros. Film Group v Cinema Adult Theater
Carter v. Helmsley-Spear, 861 F. Supp. 303, 324-25 (S.D.N.Y. 1994).
With many thanks to the editor Saskia Hufnagel for the inclusion of my work in the handbook and her reading of my work and Donald McGillivray and Andres Guadamuz for their kind assistance in reading and commenting on this piece. Thank you to Colin King for putting me in contact with the editors of this handbook in order to give me space to develop these ideas around street art, graffiti, aesthetics, law and property. With many thanks to Alison Young and Marta Iljadica for their work on street art and graffiti that I refer to and our contact in recent times on the intersection of art and law.
Editors and Affiliations
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Finchett-Maddock, L. (2019). In Vacuums of Law We Find: Outsider Poiesis in Street Art and Graffiti. In: Hufnagel, S., Chappell, D. (eds) The Palgrave Handbook on Art Crime. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-54405-6_38
Publisher Name: Palgrave Macmillan, London
Print ISBN: 978-1-137-54404-9
Online ISBN: 978-1-137-54405-6
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