Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 

Is illegally-created art protected by copyright?


23 April 2018


Stolen graffiti: Is illegally-created art protected by copyright?


If Banksy was to ever indulge in a little graffiti on our shores, how would our laws protect his art?

Street art has gained popularity and recognition both here and abroad, as evidenced by the recent $40 million Banksy exhibition hosted at Aotea Square in February.

However, when unauthorised graffiti or street art is appropriated and commercialised without the consent of its creator, the law is silent on whether the artist is entitled to enforce a copyright over their work.

Simpson Grierson partner Earl Gray says this question lay at the heart of a recent dispute in the US between fast-fashion retailer H&M and renowned LA street artist Jason “Revok” Williams.

“In this case, street artist Revok issued a cease-and-desist letter to the retailer to try to stop its unauthorised use of one of his murals as a backdrop to their ad campaign. H&M’s response was to initiate a lawsuit against the street artist,” says Gray.

“H&M said that because Revok’s mural was created illegally, like most graffiti, it was not entitled to copyright protection, asserting that this is a privilege under federal law that only extends to legally created works.”

Gray notes that while this claim is not founded in legislation, it does raise some interesting points. He says that there are some policy reasons that might support denying copyright protection to street art.

“For one, affording copyright protection could be seen to be encouraging illicit behaviour and weaken the deterrence created by the criminal law,” says Gray.

“Also, the law usually doesn’t favour people profiting from their own wrongdoing – but the unethical conduct usually must relate to the subject matter of the lawsuit. As the subject matter of the H&M suit would be copyright infringement, not illegal street art, it is hard to see though how these doctrines could apply.”

The law firm says that under New Zealand law, to show the existence of copyright, the artistic work must be original and the author must have been in New Zealand at the time the work was created.

The copyright owner then enjoys the benefit of exclusive economic rights, including the rights, among others, to: copy the work; show the work in public; make an adaptation of the work; and issue copies of the work to the public. There are also moral rights, such as the right to be identified as the author or to not have work falsely attributed to them (both of which were in issue for H&M’s actions).

However, Gray says the question of whether illegally-created graffiti is entitled to copyright protection has yet to be put to the test on New Zealand soil and the Copyright Act 1994 is silent as to whether illegally-created works should be denied protection.

“Even if the New Zealand courts are happy to enforce a street artist’s copyright, I suppose these artwork owners could potentially risk criminal charges when establishing ownership of the copyright by having to admit that they tagged property without the consent of the owner,” Gray says.

“While these issues are all still relatively fresh, and don’t appear to be drying out anytime soon, we will have to wait to see how the New Zealand courts treat these street art works and whether they deem them deserving of protection. I don’t buy the ‘it’s illegal so all bets are off’ line, though.”

Gray says any hopes that H&M’s lawsuit against Revok would provide a bright line rule about copyright protection for unauthorised graffiti, and whether it is or isn’t protected by US copyright law, were dashed when H&M withdrew the case (within a week of filing) and issued an apology.

“Without clear direction from the courts or legislation, this continues to be an interesting aspect of copyright law. From a creative arts perspective, we hope and expect that protection will follow creation in the same way as for other works.”

ENDS

© Scoop Media

 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

Joseph Cederwall: Building a Community Newsroom

The “Scoop 3.0” Transition Plan
There is good reason to believe that a new path and a better future is possible for Scoop in 2019 as a pioneering independent Media company. A combination of new technology, ideas, institutions and business models and a renewed energy and commitment by the Scoop team, means Scoop aims to be at the forefront of the development of this renaissance that we term ‘News 3.0’.

By opening up Scoop’s structure to community ownership and exploring decentralised technology through the blockchain we can ensure the public has a stake in this enterprise and a say in its development. More>>

 

Gordon Campbell: On Jami-Lee Ross (And The New Hobbit Law)

Clearly, Jami-Lee Ross is not waging a normal form of political warfare, with agreed rules of combat and rational cost/benefit calculations.

This is politics-as-terrorism where everything is being sacrificed by the man in the bomb vest in order to remove Simon Bridges as the leader of the National Party. More>>

Text Messages Released: National On $100,000 Donation(s)
The Botany Electorate of the National Party received 8 donations, and Mr Ross declared 8 donations to us. More>>

ALSO:

Film Industry Working Group:

Three Killed: DOC Supporting Family, Colleagues After Helicopter Crash

The Department of Conservation (DOC) is rallying around family and colleagues of the staff who died in a helicopter crash this morning in Wanaka... The helicopter, with two DOC staff on board, was on its way to undertake tahr control in the Haast area when it crashed. More>>

ALSO:

Political Donations: Greens Call For Tighter Anonymity Rules And Public Funding

“It is clear that those vested interests have a tangible influence on the decision making of political parties. This is a threat to democracy and should change.” More>>

ALSO:

Education Amendment Bill Passes: Urgency Sought For Partnership School Treaty Claim

The claim takes issue with the acts and omissions of the Crown in respect of the closure of Partnership Schools | Kura Hourua. More>>

ALSO:

Salvation Army Paper: Call For Public Housing Investment

To meet these future demands the report suggests the government needs to look beyond the private rental market and begin to invest heavily into home-ownership programmes and more public and social housing. More>>

ALSO:

Cull: Himalayan Tahr Control Operation Proceeding

“The target of controlling 10,000 Himalayan tahr over the next eight months remains. The revised plan provides for a staged control operation with increased reporting to the Tahr Liaison Group...” More>>

ALSO:

Health: Petitions To Fund Breast Cancer Drugs

Women marching to Parliament today, to present two petitions calling for Government funding of vital medicines, have 100% support from a coalition representing than 30 breast cancer organisations. More>>

ALSO:

Animal Welfare Advisory Committee: Report On Rodeo Practices Released

The independent committee that advises the Minister responsible for Animal Welfare, has today released a report on animal welfare in rodeos, together with advice to the Minister making recommendations to improve the welfare of the animals in rodeos. More>>

ALSO:

 
 
 
 
 

LATEST HEADLINES

  • PARLIAMENT
  • POLITICS
  • REGIONAL
 
 

InfoPages News Channels