Street artist seek advice over alleged copyright breach

Recently a street artist (“MadC”) has claimed that an ad by BA infringes her copyright in a mural in Shoreditch.  BA got the image from an ad agency who created the ad; the ad agency got it from a picture library.  Two recent press stories* throw a little light on this topic, but – sadly, and as so often happens – the press reports raise more questions than they answer.

  1. It is assumed that the street artists (the works in question here were murals, and therefore not on the street at all, but let’s not be picky) have copyright. Perhaps, but perhaps not if, like pictures that are washed off by cleaners, they are not “fixed”. How permanent is “fixed”?  Chalk on a pavement which even the rain will dissolve?  An image on a beach doomed to be carried away at high tide? An image in my face paint?  Many of the complexities of this topic relate to the evidence, rather than the principle.
  2. And does the artist achieve protection if the mural is photographed? Neat suggestion (because the photo is fixed), but the copyright in the photo is a separate copyright, so a second set of questions arises.
  3. Or does copyright in the street art exist if the art is itself criminal vandalism from which the law may not let anyone profit? (Maybe not, but, for the advertiser who is using the “criminal” image itself, this is not the most attractive defence to a copyright infringement claim… )
  4. And what rights are being asserted? The stories cover quite a range without much specificity.  Copyright only?  Artist’s moral right?  Defamation?  Endorsement in a trade mark context? It is not only Today presenters on Radio 4 who get the different forms of IP round their necks: other journalists do and – heaven forbid – so do lawyers!
  5. And what of the chain of permissions involved? Did the building owner/tenant give the artist permission? And does that matter anyway?   And did the artist give permission to the picture library? And if not, what is the ad agency paying for?
  6. And what exactly were the permissions for? Permissions can be unlimited, but they can expressly exclude use for certain purposes which the artist might not wish to be associated with, such as blood sports, the fur trade, tobacco, contraception…
  7. And against whom are the rights being asserted? Against BA only?  Why not also against the ad agency who created the ad, and against the picture library, too?
  8. Clear Channel (the ad agency and creator) seems to have a few questions to deal with. Is it not the job of the picture library and the ad agency to sort all this out?  [Note the BA comment:  “We’re glad Clear Channel is working to resolve this issue”.  You bet BA are glad; Clear Channel and the picture library may not have someone working to resolve the issue for them, however.]
  9. And why should commercial enterprises like picture libraries, ad agencies and airlines like BA use the works without rewarding the artist? While at the same time jealously guarding their own brands and marks?  Perhaps it boils down to nothing more sophisticated than (in) equality of arms:  BA has long arms and deep pockets, but most street artists have neither.
  10. And why is the street artist described in both articles as either “German born” or a “Berliner”? Does that matter?  (JRR Tolkien is not generally described as a South African though he was born in Bloemfontein.)  And why is MadC (a London street artist) seeking advice about the infringement of her London street art by a British company (as the name “British Airways” sort of suggests) in – of all places – Paris?
  11. And what of the artist´s moral right? This right (unlike copyright) cannot be transferred.  Can the artist use it to prevent the art being destroyed when the building is due to be demolished?  Or use it to prevent the art being used to promote a certain product? And is the exercise of the moral right not rather like defamation? So…
  12. What limitation period applies if the moral right is a quasi-defamation remedy?
  13. Moral: take a prophylactic: ask for a bit of advice first. Much cheaper than some very expensive cure (which may not work and may have horrible side effects, like truly terrible publicity among the street artists and all their fans and supporters).

* London Evening Standard (03/05/17) and IPR Daily (05/05/17).

For advice on intellectual property disputes please contact Seamus Smyth.