Under , protection is granted to “” This definition should include both commissioned and non-commissioned art. However, an important question arises concerning the latter: should an illegally-scrawled piece of art (graffiti for example) receive any protection at all? The doctrine of unclean hands states that “” Of course, such a principle could easily be interpreted restrictively to deny non-commissioned street art copyright protection. But nuance, as always, is a recommended approach.

The doctrine of unclean hands only applies when the wrongdoing is relevant to the copyrightability of the work. Although lawsuits involving street art often end in settlements, the few existing analogous cases demonstrate that, as long as ",” protection should be granted.

Moreover, copyright law marks a clear distinction between the intangible work it protects and the physical embodiment of that work. Thus, the ownership of the surface on which street art is composed is irrelevant to its creator’s rights, as the United States'  only grant protection over the intangible work.

When it comes to establishing infringement, must be proven: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” The first criterion involves, , the very copyrightability of the work in question. As explained previously, the first criteria is met provided the original work is fixed in a tangible medium and original.

However, because part of an infringement analysis relies on demonstrating "probative similarities between the works," establishing the copying of constituent elements of the work can be a little more complicated. tend to look for mistakes that are common to both the plaintiff's and the defendant's works, as those can rarely be the result of coincidence. However, those do not always exist and art being inherently subjective, the fundamental issues in copyright cases involving visual art can stretch beyond mere legal interpretations into artistic ones. In a domain where many their work has been influenced by someone else and where every “new” creation seems to somehow stem from another, where can we draw the line and establish that an artist’s work is completely his? Certain artists do have trademark aesthetics, but are those enough to say that a very similar looking piece of art is necessarily infringing?

The sudden rise in street art infringement lawsuits theses past few years is unsurprising. This particular form of artistic expression has become a favoured object of , , and even as . Highly competitive industries like the fashion industry are exploiting street art’s undeniable marketability. As expressed in the against American Eagle, “'street credibility’ is highly sought after by retail brands for the cultural cachet and access to the profitable youth demographic it offers.” Unfortunately, street artists must fend with more than the copyright issues underlying such realizations, as “.” Pursuing these companies to protect their intellectual property is becoming a necessity. “Street credibility” goes beyond aesthetics, with stakes in an artist’s reputation and integrity. As a matter of fact, the complaints against and  each make reference to the artists being considered “sell outs” as one of the main damages caused by their association with such corporations.

Of course, these issues have always existed. But street artists have been reluctant to go after infringers. Putting aside monetary issues, for many of them “.” Their desire to paint on the street often stems from an indifference towards the formal art world and everything it entails, but mainstream brands’ sudden interest in street art has left artists with no other option but to fight for their rights. Deterrence from doing so — in the form of vandalism charges — remains for creators of non-commissioned work as fighting for ownership rights over their art also means revealing their identity. But, for the most part, times have changed and counter culture now seems to stop where infringement begins.

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal.

The post When Choosing the Street (Art) Life Leads to the Court Life Choosing You appeared first on IPOsgoode.

The filed by the artists alleges, among other things, that the honour and reputation of the artists will be damaged if 5Pointz is destroyed or modified. To those who are familiar with copyright actions, this is a fairly classic moral rights argument. However, unlike countries such as Canada, France and Germany, the US does not provide authors of all copyright protected works with moral rights: only limited moral rights protection to creators of works of visual art under the .

VARA gives the author of a work of visual art two separate rights, although the two rights are somewhat conflated in the statement of claim.

The author of a work of visual art has the right

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

The first right allows the artists to prevent the distortion or mutilation of works that will be detrimental to the artists’ reputations. The initial debate is therefore likely to turn on whether the destruction of the buildings, or even a portion thereof, containing the aerosol artists’ work will be prejudicial to each artist’s honour or reputation. Early decisions in Canada were reluctant to hold that the destruction of a work qualifies as “distortion, mutilation or other modification” or even that it is prejudicial to an artist’s reputation:^[1] once a work is out of sight, it is generally out of mind.^[2] But subsequent reforms to the deem if the work being distorted, mutilated or otherwise modified is a painting. Unlike the Copyright Act, VARA contains no similar deeming provision for paintings. The artists must therefore prove prejudice to their reputations.

In this case, 5Pointz is world famous and extensively photographed, and so the aerosol artists’ reputation may not suffer from the destruction. If anything, the destruction of the property may actually drive up the value of the artist’s reputation by limiting the number of people who have ever had a work on the site. After all, art loves scarcity.

The second right provides the artists with the ability to prevent the complete destruction of their works if it can be demonstrated that the works are of a recognized stature. However, recognized stature is not defined in the statute. Given the fame of 5Pointz the artists may be able to show that their works are well recognized and have legitimate stature in the art world. The multi-million dollar successes of street artists such as and demonstrate how large a space graffiti have firmly established in mainstream art culture. If the owners of a museum were intending to destroy a one-of-a-kind painting, similar arguments could be raised. Why should works painted on brick by aerosol be given any less legal protection than works painted on canvas by brush?

In the leading US case^[4] on the application of VARA to graffiti the court held that public policy reasons should prevent graffiti artists from asserting moral rights over works added to another’s property illegally or without consent. But what makes this case unusual is that all of the graffiti at 5Pointz were apparently done legally with the knowledge and consent of the buildings’ owner. Moral rights to graffiti works done with consent appear to be untested in US courts.

For artists and legal professionals, the lesson here is that moral rights can turn up in unlikely places and it is unwise to ignore them. In Canada, the grants authors, including visual artists, . However, the limits of these rights are largely untested, particularly as they relate to aerosol artists. The outcome of the 5Pointz action may therefore assist the development of Canadian law in this area.

For the time being, the 5Pointz lawyers have that the plaintiffs have been granted a temporary restraining order and are waiting to learn if they will be granted a hearing for a preliminary injunction. IP Osgoode will maintain a watching brief on developments.

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