Tomasz Rychlicki is a Polish copyright lawyer, who works at Patpol, Warsaw. He sometimes posts comments on this blog, and posted a very interesting one recently on the first sale question in the Vernor case. In the current issue of the Journal of Intellectual Property Law & Practice (Oxford Journals, OUP), Mr. Rychlicki has a fascinating article called "Legal questions about illegal art." (Volume 3, number 6, June 2008, pages 393-401). The topic is graffiti that is fixed in a tangible medium of expression in violation of local law. In addition to wonderful commentary, the article has great pictures.
The issue of illegality was raised in the U.S. in English v. BFC&R East 11th Street LLC, 1997 WL 746444 (S.D.N.Y. march 3, 1997)(97 Civ. 7466)(note Westlaw gives the caption incorrectly as CFC&R). The work in English was described this way by the court:
Plaintiffs are six artists who have created certain artwork in a community garden on East 11th Street (the “Lot” or the “Garden”). As I understand it, the artwork in question consists more or less of five murals and five sculptures (one of the alleged sculptures is a “continuous line pathway sculpture”). Plaintiffs also allege that the Garden itself constitutes a single work of art. They describe it as “a large environmental sculpture encompassing the entire site and comprised of thematically interrelated paintings, murals, and individual sculptures of concrete, stone, wood and metal, and plants.” Amended Compl. ¶ 9. One mural, on the wall of a city-owned building on the west side of the garden, is an anti-smoking mural painted by plaintiff Farinacci in 1992 as part of the City's anti-smoking campaign. One other mural is painted on that wall (without City permission). The other three murals are painted on a building owned by several plaintiffs and located on the east side of the garden.FN1 Without question, the artists expended significant time and effort, not only in cleaning the area but in constructing the artwork as well.
The difficulty was that the Garden was installed illegally. Defendants wanted to remove it, but were sued for violating the moral rights under 17 USC 106A (VARA). Defendants asserted illegality as a defense, and the court agreed:
The Court therefore holds that VARA does not apply to artwork that is illegally placed on the property of others, without their consent, when such artwork cannot be removed from the site in question. The Court expresses no view on VARA's application to the individual sculptures, also illegally placed but not permanently affixed to the site, though it is clear, as discussed below, that their display in the Garden is specifically excluded from the statute's scope. See 17 U.S.C. § 106A(c)(2). What is clear is that plaintiffs cannot claim a protectable interest in the Garden itself-even were it deemed to be a single unified work of art-because it was illegally placed on City property and, plaintiffs argue, cannot be removed as a whole. Because plaintiffs have failed to raise a genuine issue of fact as to any license or permission to place the artwork on the property, and in light of the Court's holding that VARA is inapplicable to such illegally placed works, summary judgment is appropriate.
As Mr. Rychlicki points out with graffiti, as with English, there are a number of difficult issues, including the conflict between the interests of the person or company on whose property the graffiti was placed without permission, and the rights granted in national laws to visual artists. He canvasses Polish law, U.S. law, and UK law. It is a very nice piece, but alas not available online, at least yet. But not to worry, he has generously offered to supply those who email him with copies of the article, and if you are really nice, he might even send along as a bonus pictures he submitted to the journal that weren't used. Here is his email address: email@example.com