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.

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Quoting musician Greg Gillis (a.k.a. “”), Lessig illuminates the concept as “[t]his appropriation time where any grade-school kid [who] has a copy of Photoshop [….] can download a picture of George Bush and manipulate his face how they [sic] want.” This redefinition of authorship in the digital age is echoed in the Ecce Homo v. Ecce Mono controversy too, because it questions whether copyright should be used to protect something that “defaces” or reduces the value of the original work, even if it falls within the four traditional areas of copyrightable works.

In early October, Vladimir Umanets, co-founder of the so-called art movement “,” at the Tate Modern gallery in London. In his own eyes, this was not an act of vandalism, but a redefinition of a piece of art as not-art, and therefore, as a piece of Yellowism. Whether or not I actually understand the nuances of Umanets’ manifesto, I do wonder about the implications his actions might have on the perception of what remix culture constitutes. To me, this art-(and now, not-art)-is-in-the-eye-of-the-beholder perspective is being used as a justification for vandalism here. Of course, I might only be saying this because the underlying work in question is a famous painting in its own right, and the Yellowist’s (Umanets refuses the labels “artist” or “vandal”) contribution to it is detrimental to its innate value, at least for me. Umanets would disagree, believing that he has through its inclusion in the folds of Yellowism. His act asks whether the value of a derivative work is inherently linked to the effect of increasing or decreasing the original’s worth, or if it can have a separate and stand-alone value as a new work of art.

The parallel Ecce Homo v. Ecce Mono debate considers whether the value of a derivative work rests on public reaction, if its economic and artistic values are confused with each other, and if something can be “valuable vandalism.” For instance, , perhaps the most famous guerilla artist of our time, has often probed the murky philosophy behind the legal definition of “art,” by producing enduring stencilled works on state-owned property, which have had a lasting and positive effect on the public’s view of art, while creating .

What then, is the difference between Banksy, Cecilia Gimenez (the Ecce Mono creator) and Umanets? Is it the perceived value attached to the purpose that the work serves, perhaps making it worthy of being categorized as art? Or is it the real (monetary) value that the work is given, so that it is only considered art because it commands a price, which sends the (inaccurate) message that a work of art is only so if it is considered economically valuable? Or is it that the very act of vandalism is a blunt manifestation of the abstract concept of the “remix” in remix culture, where all derivative works are vandalised versions of the originals to some degree?

Copyright law does not take it upon itself to determine the quality of a literary, dramatic, musical or artistic work but only decides if it is copyrightable, . Derivative works , arguably falling into both categories at times (thanks to the oft-contradictory perceptions of the originality requirement in copyright). For cases of vandalism, it may well be that the process of defacement creates a new work that is itself worthy of protection, independent of its perceived quality. For Banksy, this may be the recognition of his works as distinctive expressions of thought, but for Gimenez, it may be the distinctiveness attributed to the Ecce Mono by its circumstances, resulting fame, and the money it generates for the Sancti Spiritus foundation.

Umanets’ act is arguably neither of the above, even as it incorporates elements of both. The defaced painting could well be copyrightable; the issue with it, as it is may be with all “vandal works,” is whether it is ethically worthy of copyright protection, even if legally found to be so. This contemplation may be debatable in the application of copyright law, but is, I believe, one of the fundamental questions that remix culture-at-work raises.

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.  As part of the program requirements, students are asked to write a blog on a topic of their choice.

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