By - King Stubb & Kasiva on November 8, 2023
The ephemeral quality of street art presents a distinctive challenge in the context of copyright. Street art, often located in public spaces, is inherently subject to the forces of weather, time, and human intervention. This means that artwork can be erased, obscured, or modified without the artist's consent. Such alterations can potentially infringe upon the artist’s copyright rights, mainly if they involve significant changes to the original work. The impermanence of street art underscores the complex relationship between the artist’s intellectual property rights and the ever-evolving urban environment.
It also raises pertinent questions about the responsibility of local authorities and communities in preserving and respecting these transient works, finding a delicate balance between the rights of the artist and the dynamic nature of street art. This unique challenge highlights the need for a nuanced approach to copyright within street art, recognising the vitality of artistic expression and the realities of its temporal existence.
Under the Indian Copyright Act of 1957, a mural is unequivocally categorised as an "artistic work" under Section 2(c). Also, it falls within the ambit of Section 2(y), thus making it eligible for copyright protection as per Section 13. Consequently, any claim of copyright protection by an artist in regard to a mural is fully aligned with the provisions of Indian copyright law.
As for the reproduction of murals, the Act outlines that any reproduction of a protected work in any material form with the intention of communicating it to the public, which includes its depiction in both 2D and 3D works, its incorporation in a cinematograph film, or the issuance of printed copies of the mural, constitutes an exclusive right of the copyright owner. This copyright holder could either be the artist themselves or an organisation to which the rights to the mural have been licensed. Nevertheless, it is worth noting that the Indian Copyright Act does provide for certain exceptions, and the de minimis doctrine is among them.
The Indian Copyright Act introduces certain exceptions to the stringent framework of copyright protection, and one particularly relevant doctrine is the de minimis doctrine. This legal principle allows for the use of copyrighted works in minuscule and inconsequential ways that do not amount to copyright infringement. This doctrine assumes considerable significance in the context of street art and murals. Given the often complex and nuanced nature of these art forms, where elements of pre-existing works or urban surroundings may be incorporated in a minor, unobtrusive manner, the de minimis doctrine offers flexibility.
It permits artists to draw inspiration from their environment and cultural milieu without fear of infringing copyright as long as the use is deemed trivial and inconsequential. This doctrine not only acknowledges the unique challenges faced by street artists but also encourages a creative atmosphere that thrives on the fusion of various elements while respecting the rights of copyright owners.
In the case of Amar Nath Sehgal vs Union of India, Amarnath Sehgal, a famous sculptor, was asked by the Indian Government to create a mural for Vigyan Bhavan. However, during renovations, the Government removed the murals on the building's walls, including Amarnath's work. They stored these murals in the building without informing or getting permission from Amarnath. Unfortunately, the mural suffered minor damage during this process due to negligence. In response, Amarnath took legal action against the Government, claiming that they violated his moral rights by mishandling and storing his artwork without his consent.
In this case, the court underscored the profound importance of moral rights to an author's work, emphasising that these rights remain intrinsic to the creator even after the sale. The court's decision unequivocally established that the destruction and mutilation of an artwork constitute a blatant infringement of the author's moral rights. In the case where a mural was partially mutilated and damaged, the court recognised that such actions were detrimental to the artwork and tarnished the author's reputation, irrespective of ownership. As a result, the author was rightfully awarded compensation for this breach of their moral rights. Section 57 of the Act provides for Author’s special rights.
This landmark case set a crucial precedent for interpreting moral rights, granting authors an added layer of protection. It also marked a significant development by allowing special reliefs, including the return of the copyrighted work to the author, which had not been previously witnessed in legal matters about copyright and moral rights.
Ownership and authorship issues pose a substantial challenge in street art. Unlike traditional art forms, street artists frequently operate under pseudonyms or choose to remain entirely anonymous. This characteristic of anonymity is deeply rooted in street art. As a result, identifying the actual author of a particular work can be an intricate puzzle. This anonymity raises questions about how copyright ownership can be assigned when the artist's identity is concealed or obfuscated.
In cases where a legal dispute or the need for copyright enforcement arises, determining the rightful owner of the artwork becomes a convoluted process. In these situations, the line between the artist's intent to remain anonymous and their right to protect their creative work becomes blurred. Thus, addressing the intricate issue of ownership and authorship in the context of street art requires a delicate balance between protecting the artist's identity and preserving their copyright interests. It underscores the unique and challenging nature of street art within the framework of intellectual property law.
Street art's inherent nature often involves the creation of artworks on public or private property without formal authorisation. This practice gives rise to pressing concerns regarding consent and permission. While street artists may intend to contribute to a place's cultural vibrancy, the act itself can be seen as a potential infringement on the property owner's rights. In many instances, the property owner has yet to explicitly grant permission for the artwork to be displayed on their premises.
This creates a complex legal and ethical conundrum, as the rights of the artist, who seeks to express themselves, must be weighed against the rights of the property owner, who may not want their property to serve as a canvas for others. Addressing these questions of consent and permission becomes essential in street art, requiring a careful examination of property rights, freedom of expression, and the balance between the interests of artists and property owners.
Street art and murals enrich our urban landscapes, adding depth and vibrancy to our cultural tapestry. Copyright protection plays a crucial role in safeguarding the rights of these artists, ensuring their contributions are duly recognised and protected. Yet, the distinctive nature of street art, marked by issues such as anonymous authorship, the transient nature of outdoor works, and the flexibility of the de minimis doctrine, introduces complexity into the copyright equation.
Striking a harmonious balance between legal frameworks, the imperative of artistic freedom, and the preservation of public art remains an ongoing challenge. In the ever-evolving world of street art, it is imperative to encourage creative expression while respecting the rights and intentions of the artists who contribute to the urban narrative. This ongoing quest for equilibrium underscores the critical importance of navigating the intersection of copyright and artistic expression in street art.
Literary works, cinematographic films, dramatic works, musical works, etc can also be copyrighted in India.
Artists need to submit an application to the Indian Copyright Office under the Department of Promotion of Industry and Internal Trade (Ministry of Commerce & Industry). https://copyright.gov.in/
Copyright infringement in street art can lead to legal consequences, including cease and desist orders, the removal or destruction of infringing works, and potential legal actions.
 Amar Nath Sehgal vs Union of India, 117 (2005) DLT 717