Overview of graffiti and its legal considerations in Canada

Long relegated to the margins of society owing to its sometimes illegal nature, graffiti has experienced spectacular growth in recent years and has become ubiquitous in the urban landscape of many cities. However, this new infatuation with graffiti art and its artists has also brought its share of legal considerations, particularly from the standpoint of the Copyright Act[2]. On the one hand, some of the issues raised by graffiti pit the copyright and moral rights held by graffiti artists against the property right of third party landowners on which the drawings and works are produced. On the other hand, there are also issues that arise regarding the illegal use that a third party could make of a graffiti produced illegally, and these also deserve attention.

Graffiti and copyright

From the outset, it is important to point out that, despite the sometimes illegal nature of graffiti, it is considered a work within the meaning of the Copyright Act if it meets the required conditions laid down in the legislation, i.e. (i) it must be original and (ii) it must be fixed in a tangible medium. However, one should be wary not to confuse originality and novelty. The Act does not require that a work be new, simply that it has not been copied and that it demonstrates a modicum of talent and judgment.

Once the previously cited conditions are met, graffiti artists may, a priori, benefit from the economic and moral rights granted by the Copyright Act. In that sense, they can attempt to prevent third parties from reproducing or using a copy of the works without the artists’ authorization or try to prevent an individual from distorting, mutilating or otherwise modifying their works. That being said, can artists really invoke these rights when they are not the actual owners of the medium on which their works are fixed?

The distortion, mutilation or modification of graffiti

The general rule laid down in subsection 13(1) of the Copyright Act is that “the author of a work shall be the first owner of the copyright therein”. Following that logic, whether legal or illegal, graffiti copyright accrues to the first owner of the copyright, i.e. the graffiti artist.

Under the Copyright Act, artists are entitled to the integrity of their work. In accordance with that right, graffiti artists can be awarded damages for infringement of their right to the integrity of their work if they can show that it was distorted, mutilated or otherwise modified in a manner prejudicial to their honor or reputation, or if it was used in association with a product, service, cause or institution without their consent.

So, what happens when the owner of property on which a graffiti was illegally fixed decides to distort, mutilate or modify the work?

In the case where the graffiti was illegally affixed (that is, without the property owner’s consent), there is no doubt that the property owner can invoke his right of ownership, which confers upon him “the right to use, enjoy and dispose of property fully and freely”. Moreover, the owner could also attempt to raise the illegality of the graffiti artist’s act. However, to the extent that the legal action for infringement of moral rights would have been instituted by the graffiti artist, it would not be heard before a criminal court, but rather before a civil court. As such, a civil court would not be the appropriate forum to deal with the nature of the graffiti artist’s act, and the presiding judge would accordingly have to limit his/herself to the facts and the issues raised before him/her, i.e. whether the graffiti constitutes a work within the meaning of the Copyright Act and, if so, whether the artist’s moral rights have been infringed.

That being said, the judge would necessarily have to consider the fact that the owner’s right of ownership was violated. Therefore, it would not be completely unreasonable to think that, when balancing the interests of the parties, a judge could give additional weight to the graffiti artist’s violation of the owner’s property right.

In the case of graffiti created legally (that is, affixed at the request or with the consent of the owner), the issue of the illegality of the act committed by the graffiti artist would not arise. This means that a graffiti artist could be entitled to damages if the court concluded that the addition or removal of certain parts of the graffiti was tantamount to an infringement of the integrity of the work and that it was done in a manner prejudicial to the honour or reputation of the graffiti artist. It should be noted, however, that in addition to copyright, a contractual component could also be added to the judge’s assessment in the event that the parties would have previously agreed to retain the work for a predetermined period of time.

What happens, however, when the work is completely destroyed? An American case[3] recently attracted wide attention when a judge decided to award U.S$6.75 million in compensation to 21 artists whose works had been destroyed by a property owner.

Although they may share similarities, Canadian and American copyright laws differ with regards the protection afforded to moral rights[4]. While American law is more restrictive in that it applies only to “works of visual art”, the destruction of a work is nevertheless included as a reprehensible act if it is established that the work was of “recognized stature”. Canadian law has no such equivalent and deals only with the distortion, mutilation and destruction of a work.

However, for certain Canadian authors, [Translation] “it is a principle that the purchaser of a work must use the work in accordance with its nature”. According to them, [Translation] “there is no worse mutilation than destruction” and destruction of a work is thus tantamount to an infringement moral rights since it deprives the artist of an expectation of reputation.

Conversely, another school of thought is that individuals who acquire a work of art are not subject to any legal obligation; they may therefore freely choose to store it in their garage, rather than display it on the wall of their living room. According to the advocates of this school of thought, the freedom that individuals thereby enjoy to dispose freely of their property also includes the right to destroy it. According to them, the absence of the term “destruction” from the wording of section 28.2 of the Copyright Act and the fact that the Canadian government has not yet taken steps to that end therefore appear to mean that, in Canada, the destruction of a work is not among the prerogatives of the artist, much to the dismay of many.

The unauthorized reproduction of graffiti

The second issue that may arise concerns the unlawful use of illegal graffiti by a third party. Indeed, is it possible for graffiti artists to prevent someone from reproducing their work or committing any act reserved exclusively to the artists according to section 3 of the Copyright Act, despite the illegal nature of the act? For several years now, a good many disputes, whether they have gone before the courts or not, pitted graffiti artists against business entities.

Many entities such as H&M, GM, Cavalli and Moschino saw legal actions instituted against them for copyright infringement. In most cases, the alleged act was related to the prohibited reproduction of a work of art used in an advertisement or an advertising campaign. In response to the lawsuits, a number of companies raised the illegal nature of graffiti to justify why graffiti artists should not be able to benefit from the fruits of their labour when the graffiti was affixed illegally.

In Montréal, a similar case occurred when a well-known graffiti artist, Alex Scanner, took legal action against a production company that had used one of his works in the credits of a television show. Despite the fact that the dispute was settled out of court (like many similar suits instituted in the United States), it would not be unreasonable to think that, provided he could have been able to demonstrate that a substantial part of his work had been used without his consent and that such use did not constitute an exception provided for in the Copyright Act, Alex Scanner could have been successful and been awarded certain damages for the infringement of his rights.

Conclusion

From marginal and unloved to respected and coveted, graffiti has become an integral part of the urban landscape and an intangible asset in its own right. However, this new popularity brings with it its share of legal conundrums brought to light by the actions of certain parties.

While the illegality of the graffiti cannot be invoked to exempt it from the protection afforded to it by the Copyright Act, the issue of the damages that may be awarded in the event of distortion or destruction of graffiti remains complex.

Having said that, the question remains: graffiti being temporary in nature, will it nevertheless leave an indelible mark on the contemporary art world?

For more information about graffiti and its legal considerations, feel free to contact the ROBIC team.

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