Wednesday, May 28, 2008

Illegal art

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:


Anonymous said...

This is strongly related to another set of questions I hear a lot from beginning photographers regarding photography of graffiti and other illegally-placed wworks of art. That is, can they photograph it, can they copyright those photographs, and can they commercially exploit those photographs?

My position on the matter, which seems to be in accord with what cases there are, is that the question of copyrightability (as pointed out by anonymous and Mr. Patry's response) is that copyrightable art is copyrightable art. You can photograph it, of course, and you can claim Fair Use for various uses of the photographs. (The current split in the courts on whether photographs are derivative works is problematical for questions of copyrighting them, though.) However, even though the art was illegally placed, you would commercially exploit reproductions of it at your peril, in my opinion.

Here is an interesting scenario which I would like to hear Mr. Patry or others comment upon, while the topic is at hand. Suppose a graffiti artist (or vandal, as you prefer) produces an elaborate work of art which is illegally placed. I photograph it immediately after its completion. The next day, Mayor Daley's Graffiti Blasters come along and remove the artwork before anyone else, including the artist, can photograph it.

Further suppose I then exploit the photograph in some wise. Artist claims infringement: I ask for proof of authorship or registration. He has none. No registration, no suit. I tell him to run along. (Obviously, my moral position is questionable here. This is a question of legality.)

Can he in some way require me to deliver up the photographs so he can file a registration? If I publish them in a magazine, can he cut the page out of the magazine and submit it with a registration application? How, if at all, can he reach me if the only possible way to submit a specimen is to use my photographs and I won't give him permission to do so? (That is not a rhetorical question.) What chance that he will be recognized as the author since he has no proof and the work was "published," if at all, totally anonymously and unlawfully?

Any thoughts would be appreciated.

Marc W.

Anonymous said...

This case is a marvelous illustration that the "moral rights" of authors popular in Europe is a legal trail that's best avoided.

Where I live in Washington state the legislators grew tired of some boring art in one of their buildings and had a dreadful time getting rid of it when the artist who created it threatened legal action.

All too many modern artists and their adoring fans seemed to have taken on the mindset of Europe's old nobility. In any conflict between them and us (as peasants), they're supposed to win, even if the matter involves forcing us to view every day their defacement of our property. "Art for art's sake" is often little more than "Art for the artist's sake."

I know of one rusted chunk of welded metal in a park that's unfortunately acquired the label of art, although it's nothing a fourteen-year-old kid who knows how to use welding equipment couldn't create in a day or two. It's placed in an awkward position for those passing by but can't be moved, lest the artist and the patron who donated his art become upset. It also can't be protected from being touched with any sort of barrier, yet people are harassed by guards for touching it, apparently with the intention to teach peasants their place in the scheme of things. And that same lack of a barrier raises serious ethical and safety issues because projecting bits of metal are at eye-level for small children. And all that for a bit of art so mediocre, it rarely gets noticed by those not forced to walk around it.

Ah, but it's art, how dare we suggest that any desire of the artist not be taken with the upmost seriousness?

Bosh! The European nobility did get one thing right. They kept this sort of behavior down by keeping arrogant artists hungry and begging for patronage. We need to do more of that. I grow tired of celebrities in the arts, music and entertainment telling me what to think and how to live.

Anonymous said...

to marcw:

Remember that copyright law has at its roots both law and equity. Equity would not suffer the lack of remedy for the taking you proposed in your example. Fortunately, neither would the copyright law. Of course the artist could register the work using your photograph of it. the CO would accept it for deposit purposes whether or not you licensed that use of the photograph. Any Federal District Judge would laugh you out court or hopefully censure you for wasting everyone's time with a silly infringement claim based on use of the photograph for registration. You would loose on the merits as well. The photograph is a straight-forward infringement of the artist's work.

William Patry said...

Dear Anon, appreciating that there are those who still believe that the decisions of the King's Bench in Millar v. Taylor (1769) was correct rather than the House Lord's decision in Donalson v. Becket (1774), it has been the case since 1774 in the UK and 1834 in the U..S (Wheaton v. Peters) that copyright is a purely statutory, positive law creation. We could, in both countries, do anyway with it, and then there would be no cause of action in equity.

Anonymous said...

Understood, but "has at its roots" means exactly 1769 and all other theories of equitable, natural and moral rights even if usurped by the Crown or the Constitution. Despite the statute, copyright-related cases still speak to equitable interests held by authors (as long as they can be deduced from the statute!).

William Patry said...

Thanks, Anon for the clarification. We may be saying something similar. I think all interests, of all kinds, are found only in the statute, informed by its purpose, which in the case of VARA turns out to be mostly to preserve the tangible object, understanding that there is too the right of attribution which is based in the artist him or herself

Anonymous said...

Anonymous (4:02 version:)

I wasn't sufficiently clear. I didn't mean that I would somehow claim infringement, or argue that it might not be a Fair Use for him to do that. I didn't separate my scenarios sufficiently.

Suppose I make viewable somewhere a small sample image that makes it clear I *do* have a viable image of the artwork. (If you like, assume I flat out say as much.) He claims infringement and wants the photograph so he can file a registration (assume the viewable work is insufficient as a specimen.) If he gets the photograph and files the registration, he can then use it against me. Can he make me deliver it up? If so, on what grounds? Can I hold him in a standoff forever where he knows I have what he needs to register the artwork but is unable to proceed because he can't get at it to do so? Suppose I install it as a decoration in a private building - he might very well find out about it, but be unable to get at it to make a copy of the photograph. Do I have him beaten by default?

Suppose instead/further I am in a circuit where photographs of artworks are not considered derivative works and therefore I do not need his permission to register it. I file a registration on the photograph, and it is issued timely. (I love eCO.)

Leaving aside the question of proving up authorship - which might be extraordinarily difficult for him - at what point can he get involved here? Can he try to use my specimen to file his own registration?

The growing ubiquity of digital cameras might make this question somewhat moot - any serious graffiti artist is probably going to at least snap a few pics with his cell phone, and assuming he keeps them and doesn't erase them for fear of their being used as prosecutorial evidence, they might be enough to avoid the whole problem. But it's still interesting to me as I can easily see variants of it happening.


Birgit Clark said...

I would just like to add that this is a fantastic article - thought provoking and very informative.