Graffiti is one of the
fastest growing artistic movement in the modern time. In these days, graffiti
can be noticeably seen in many places such as on walls or trains in urban area
of big cities across the world, they are treated as a kind of art and they are
accepted by public to beauty the cities. However, some graffiti are in a
embarrassing situation. On one hand, they are produced illegally, namely they
are painted without the permission of the property owners, which put themselves
at a risk of being sued for tort. On the other hand, the graffiti, which full
of the value of aesthetic, may suffer from being abused online,on merchandise,
or on many wardrobes. “No other art movement in human history has so
thoroughly confounded the deeply held concepts of public and private property;
no other art movement has so thoroughly made itself a public-policy
issue.”1
the graffiti which illegally placed on the property should be punished,
nevertheless, they also should be protected by copyright law when they are
infringed by others. This dilemma causes increasing numbers of litigation
brought by property owners or artists. At the same time, however,the status of
legal protection for Graffiti remained obscure. Thus, the arguments that
whether these illegally placed graffiti could be protected by copyright or not
are put forward. This paper will focus on the arguments and represent some
views based on previous legal cases.

What is graffiti and the problem it is facing with

‘Graffiti’ were
firstly developed in Philadelphia and New York city as a new form of artistic
movement in the early 1970’s, and become continuous growing form of art in
merely a few years after their first boom, their subculture spread to others
cities and countries across the world, including United Kingdom in early 80’s,
and Tokyo shortly afterwards in the same decade.2
The early evidence of the existence of the British graffiti was appeared in
Bristol and London in the early 80’s.3
They can be founded in big cities, especially in the urban area, and in variety
of spaces which are the public eye-catching spots such as walls, abandoned
buildings (noticeably rooftop), streets, tubes, or on train carriages, which
artists chosen these spots carefully in order to make sure that their works can
visibly attract public and other artists in the community.4

Graffiti
are the term that broadly refers to artistic movement that consists of
different styles (spray-painted graffiti, stencil works, or street art), but
narrowly only refers to the art works produced by using spray-cans.5 The graffiti technique focusing on the painting of phrases
or text (e.g. signatures)6 with a message aiming to their community. However, street
arts are more innovative by using more technique and materials rather than
spray-cans such as using cut-outs, stickers, urban-knitting, mosaics, or
lighting-installations. Moreover, they focus mainly on images rather than
letters and with the purpose of artistic aesthetics which can connect to the
public easier than graffiti.7 This paper will use the term ‘graffiti’ referring to these
kinds of artistic movement.8

Once, graffiti were considered to be vandalism by many by
placing the works on public places and even the private properties, in which
some group of people negatively viewed as ‘visual pollution’.9
Nonetheless,nowadays graffiti gaining more acceptance in various sections,
including political and even some local authorities. In 2010, British Prime
Minister David Cameron presented graffiti work as a gift to President Barack
Obama,10the Hope
poster during Obama’s election campaign also being a graffiti. Not just in
political sections, some cities have already legalized graffiti (Paris,
Melbourne, Prague),11 and some
providing ‘free-walls’ for graffiti artists to use, 12as the ‘zona
de graffiti’ in Argentina’s capital.13 Graffiti
also have their places in art galleries, museums, and art exhibitions(London
held the first Graffiti Display in 2008),14 not just
the works solely founded alongside the streets.15 These can
likely to illustrate that graffiti becoming popular and accepted in nowadays
society. Even
though, in various circumstances, graffiti still being punished (fines or even
criminal sanctions) by local authorities.16

According
to their growing popularity and the chance to take advantage of them, the
graffiti works of famous artists such as Banksy, or Jean-Michel Basquiat were
sold in high price.17 Furthermore, It can be easily seen that graffiti works
appear in various places. For instance, they have become backdrops in films or
television programs or videos,been screened on clothing and other goods
(t-shirts, cups, bags, home furnishings) or been displayed in books or on
websites. However,what should be noticed is that most of the use of graffiti
are illegal, which is without permission from artists who created them. Many
lawsuits were brought to the court by artists in order to assert their right on
their works, and the problem is the status of legal protection remained
unclear, especially in illegal graffiti.

An obscure
settlement of the illegal Graffiti

Even
though, there are number of lawsuits brought to the court regarding the
assertion of artists’ rights, there still has none of a case in the UK or even
the US that the court explicitly rules about the ‘Copyrightability’ of the
graffiti, whether they are protected by Copyright Law or not. In most of the
cases the court thus ruled in another issue, it is likely to see that the court
try to ignore to rule this delicate issue while it has ample opportunity to do
so to end the debate.18

The
silence of the court regarding to the issue of copyrightability of graffiti,
causing arguments among scholars supporting and against the copyright
protection of graffiti, significantly in the illegal graffiti. Not only the
question whether they are copyrightable, but also about the rights subsists in
copyright protection (such as Moral Rights) for the graffiti.

Proposed change

The relevant provision in regards with the Graffiti is
Section 1 and 4 of the Copyright, Designs and Patents Act (CDPA) 1988 that
briefly regulate the definition and requirements of copyrightable ‘work’, in
which the graffiti seem to fit the meaning of ‘artistic works’, however, it
could be argued that no copyright protection can be achieved if the illegal
content (libellous19or
calculated to do injury to the public,20blasphemous
or irreligious,21obscene,22 indecent,23 immoral,24deceptive,25 or
causing ‘turpitude’.26)of the
artwork would be against public policy or harm the public’s interest. Moreover,
an impediment which is known for ‘unclean hands’ principle arose in US case.27