Street art consistently provides a forum for expression. Expression of power, resistance, justice and injustice, condemnations of the past and hopes for the future. But to many, appreciation of this expression does not translate to consideration of how the underlying work might be protected in law.
Perhaps as a result, we are seeing more and more brands using street art in advertising and on products without seeking permission from, or granting credit to, the artist. Presumably this is based on the assumption that the work is not protected by UK law. That assumption is incorrect, and use of intangible assets owned by street artists is no longer going unnoticed. Brands need to reassess the basis on which they make use of artists’ property, considering not only the injustice of infringement but also the damage caused by misappropriating a piece of cultural or social expression which is not necessarily intended (and more often expressly not intended) to align with the commercial mainstream.
Is street art protected by copyright?
Although the point has never been decided in court, it is clear that street art is capable of being protected by copyright in the UK. UK copyright protects original artistic works, with "graphic works" being specifically identified as a type of artistic work. The requirement for a work to be original refers not to its artistic merit but to the fact that what is being protected is the author's skill and labour in composing and producing the work. Copyright protection in the context of street art can therefore extend not just to murals but tags, graphic lettering and textual content itself, where the relevant work represents a sufficient degree of skill and labour on the part of the artist.
Copyright authors are automatically entitled to certain "moral rights" in respect of their work. These moral rights allow the author to request that they are identified as the author of their copyright work whenever it is published or distributed. They also grant the author the right to object to "derogatory treatment" of their copyright work. Treatment is generally considered to be derogatory if it distorts, mutilates or is otherwise prejudicial to the honour or reputation of the author. In the context of street art, this may include attempts to add to, dissemble, remove or relocate the physical form of the work from its place of installation.
What about illegality?
UK law does not explicitly deny protection to copyright works which are created illegally or contain controversial subject matter. It is therefore unlikely that, in a UK court, street artists would be denied ownership of copyright. That said, there is a particular tension between the protection afforded to street artists in respect of their works and the proprietary rights of third party building owners. Although the intangible property right (copyright) in the work remains with the artist, and may allow them to assert certain rights (such as the moral right to object to derogatory treatment), the physical artwork belongs to the building owner. There is no precedent in UK law to dictate how a court would balance these competing interests, although the law will likely be more reluctant to afford artists the chance to exercise their rights against those of property owners (to sell, relocate or destroy the piece) where the artwork has been illegally created.
Artists may also be denied the opportunity to enforce their intangible rights against other parties, such as brand owners, where the work has been created illegally. Even though brand owners do not have a competing interest in the same way as property owners, a UK court may refuse to facilitate enforcement of an artist’s rights on the grounds of public interest (copyright only), or the basis that certain remedies cannot be granted to parties who do not come before the court with "clean hands" (in the case of both copyright and moral rights). UK law also includes provisions designed to prevent people from profiting from their criminal acts, meaning that even if relief were to be granted to an artist against a third party, where the art in question has been created illegally, UK enforcement agencies are empowered to retrieve the relevant amounts.
Where street art has been created from initial sketches or stencils, or has been photographed by the artist, an alternative option may be to enforce the copyright in those underlying / derivative materials instead of relying on rights generated by the work itself. Artists should of course be aware that, depending on the degree of similarity between the preparatory design (or photo) and the copied work, it may be commensurately more difficult to prove infringement.
Are there any other types of IP protection available to street art?
(a) Registered Trade Marks
UK registered trade mark protection is generally less relevant to street art, despite the fact that street art often incorporates repeated marks, words or motifs. The first hurdle to protection is that trade mark protection does not arise automatically - the sign must be registered as a trade mark in the relevant territories and against the relevant goods for which it is used. The second is that, before registration is granted, the applicant must prove that the mark is capable of being used (and intended to be used) "as a trade mark" to identify goods or services as originating from a particular person or undertaking. This aligns with the fact that trade mark protection is intended to provide protection to signs used in the course of a trade. It is a high bar to establish the requisite criteria for commercial use unless the artist in question (see for example Haring or Basquiat) has a side line in affiliated merchandise.
(b) Passing Off
Passing off is a difficult claim to establish under UK law and it is rare that a brand would be found to be “passing off” an artist’s work as its own. The scope for this kind of claim seems to be limited to situations where a brand uses a well-known motif or style of a street artist on a product in circumstances which misrepresent the origin of the work and damage the artist.
That said, there are a number of US cases whose facts seem to align with the UK test for passing off. See North Face’s use of the atom design created by street artist Futura in its conveniently named “FUTURELIGHT” line and American Eagle’s use of the Ahol Lazy Eye design in a campaign featuring a model holding a spray can, to name a few. In a similar vein, Moschino incorporated artwork by street artist RIME into its Fall/Winter 2015 collection along with “Rime” and “Moschino” tags, arguably giving a false impression that this was an artist-endorsed collaboration. It was specifically noted in the Moschino case that use caused “damage to Plaintiff’s reputation and credibility in the art world based upon the perceived association with and endorsement of the Moschino and Jeremy Scott brands” and that “nothing is more antithetical to the outsider “street cred” that is essential to graffiti artists than association with European chic, luxury and glamour—of which Moschino is the epitome“. Although US cases, there is of course no reason that a similar fact pattern could not arise in the UK.
Street art in advertising - do brands need to ask permission?
Yes. Brands should be aware that when they use street art, they are using an asset (and sometimes a collection of assets) belonging to someone else. In order to secure use, they need to seek permission, which can be given or received at the owner's discretion - and on their terms. Regardless of the circumstances in which the assets owned by street artists have been created, the fact that they are publicly displayed and the intangible nature of the proprietary asset, street art should not be considered "fair game" for corporate monetisation.
It is worth bearing in mind that UK copyright law does recognise an exception for “incidental” use of copyright works. Incidental is understood to have its ordinary meaning, that is, casual, background use which is non-essential. An example of incidental use might be a photo of a building used on an estate agent’s website, which happens to capture the street art on one of the building’s walls. In deciding whether use is incidental, the UK courts will take into account both the aesthetic and the commercial reasons for use. It follows that that prominent placement of street art by brands in order to profit from its cultural status is highly unlikely to fall within this exception.
In short, the rules apply.
Artists: stand up. Brands: take note. Use of intangible assets can benefit everyone, but only so long as their ownership is recognised and respected.