There has been a spate of recent cases where large corporations are alleged to have used street art without seeking the appropriate permissions. British Airways is the latest to become embroiled, as reported by the Evening Standard on 3 May. Art law specialists Tim Maxwell and Fred Clark explain why brands cannot simply help themselves to artworks, even on the street.
BA has been accused of "corporate vandalism" and appropriating the art of Claudia Walde (known as MadC), Elian Chali and Alexis Diaz for an outdoor ad that appeared in London's Shoreditch. Clear Channel, which designed the billboard, said it used the images in good faith and took them from reputable image libraries.
Many people, including large corporations, think that because street art is public it can be freely used. This is wrong. The law in England gives graffiti or street artists intellectual property rights just like other artists.
Intellectual property (IP) rights are invisible rights that protect the visible and audible creations of artists and designers. And there is a global industry geared to protecting that IP – for example by registering design rights or licensing copyrighted works to others who want to use it – and to enforcing artists' rights when IP is infringed.
There are a number of different IP rights, which confer rights on the creators for different lengths of time and to different degrees. In the UK, copyright is an automatic right that arises when an original work is created and recorded and lasts for the lifetime of the creator plus another 70 years. Even your doodles on an old envelope on your desk automatically benefit from copyright protection – although that copyright is unlikely to be worth anything unless you happen to be the next Picasso.
There are also moral rights, which are intended to allow artists the right to have work attributed to them and to protect the artists from others distorting, mutilating or otherwise modifying their work.
Famous artists, their estates and representatives are well versed at deriving commercial benefit from their copyright when others want to use it. For example, if a pop song is going to be used in a broadcast advert or Hollywood blockbuster, the songwriters will negotiate a fee and license the rights to use the song. If this does not happen, they will be able to pursue legal avenues to make a claim for the infringement and may be paid damages for the infringement.
Musician Ed Sheeran recently settled a lawsuit out of Court based on allegations he had breached someone's copyright in a case reportedly worth $20m. In the art world, Richard Prince has been on the receiving end of numerous lawsuits for his alleged copying others' works in the process of creating his own works.
It is recognised that street artists have copyright in their work even when painted on property without permission. This principle was recognised by the Judge in our firm's recent case involving the removal of Banksy's 'Art Buff' from a property in Folkestone. Street artists may be entitled to copyright protection, even if the act of painting was illegal/without permission or the image is relatively temporary.
In the US, lawyers for the estate of the late graffiti artist Dashiell 'Dash' Snow – a cult New York 'artist and provocateur' who died in 2009 and whose works have fetched six-figure sums – recently sued McDonald's for copyright infringement when the restaurant chain used an image from Snow's work to decorate the interior of its fast-food outlets. The courts in the US decided that they were not the appropriate place for the claim and it remains to be seen if the case will be pursued in another country.
Where copyright is infringed, artists are often left in positions where they face well-resourced companies which may have copied their work. Most street artists are not commercially successful; they have limited resources and even though they know their rights have been infringed, it may not always make sense economically to go after the people who steal their images and ideas. But the Courts in recent years have devised ways to encourage intellectual property owners to assert and protect their rights.
If a claim is brought for a breach of copyright, the penalties can be strict, ranging from fines to prison sentences. The criminal end of the spectrum includes fraud (think of counterfeit handbags) and piracy (think of the film industry). In the case of artwork, whether graffiti or not, injunctions to stop further use and damages are the most common remedies.
There are several exceptions to copyright infringement, for example, the use in news reports and academic research; more specific exceptions are assessed on a case-by-case basis. Many defendants, when faced with a claim, will try to plead that their use of copyrighted work fits into one of the many exceptions.
But the possibility of getting into a legal argument may put off artists whose rights have been infringed, even though the companies may end up paying damages and being forced to stop the infringement.
While it remains to be seen what will come from the recent BA case, the reasons why the artwork was used or who thought what at the time will not matter to the artists who will simply want to protect their rights.
Tim Maxwell is a partner and joint-head of Boodle Hatfield's Art Law & More team and Fred Clark, trainee solicitor.