• Bernarda Chiriboga

Public Art Should Not Go Private

Updated: Jun 28, 2020

Why Graffiti Art Should Not Be Protected By Copyright?

The rise of the internet and its increased access to unlimited ideas and information, has brought unprecedented challenges to the 21st century. The democratization of power is becoming increasingly evident as large corporations are no longer able to control markets with economic forces. Instead, exposure has accumulated popular power through its ability to influence masses. The result has led to the formation of countercultures which have accomplished to flourish outside a uniform spectrum -- promoting their own set of social beliefs and behaviors. This democratization of power, however, has culminated a fight were capitalist systems are on a constant fight to regain the power of monetary value by using the likelihood of popular art to associate themselves to the movement or, in some cases, appropriate them. Resulting on both, a disruption within the development of these cultures and with relation to the outside forces. Copyright protection, for that matter, has secured the rights of the author to benefit from their intellectual property by limiting the scope of how this work can be used without the author’s permission. In cases like Jason Williams, such protection is not as obvious. He is a graffiti artist who goes by the name of Revok. After finding one of his works in a H&M’s advertisement, he contacted the company claiming copyright infringement, asking H&M to pull the advertisement down. H&M instead, backfired with a lawsuit asking for a judgement declaring that Revok does not own the copyright on work that was painted on a wall without permission. But graffiti, like many other types of art, falls under the notion of intellectual property. Nevertheless, the nature and ground of such pictorial art would be threatened by the legitimization of its copyright protection under a legal system.

The notion that intangible ideas come from labor dates back to the 18th century, when the enlightenment movement brought a shift in the views of knowledge and creativity. “Ideas were no longer considered divine knowledge inherited only from ancient sources which meant to serve the public, but rather intellectual labor with a natural right to the author” (Hesse,1949). The concept of intellectual property thus, mirrors that of other traditional forms of property, in such terms that value is defined by labor. The basic premise of Copyright, for that matter, is to regard such labor by granting it protection while at the same time promoting progress by securing the authors exclusive rights to their work. And awarding legal ownership to a variety of ideas and creations would likewise secure the author’s capitalization over their work. Graffiti art, indeed, is a form of intellectual property and its artist have the power and right to claim copyright ownership but, unlike any other types of art, contemporary graffiti emerged as a form of rebellion against capitalist bodies of power. Graffiti art became an underground/clandestine form of expression that flourished as an anti-capitalist, anti-government movement during the 70’s and 80’s. It matured into a counterculture where artist collectively worked with one another to break the common misconceptions of art by reaching a public audience. Hence, its clandestine characteristic added value to the expression as it manifested in mechanism that brought art out of the museums and into the streets. These “rebellious acts” inspired and contributed to the modern narration that “art is for everyone” by going against the belief that art should only be for the educated. Its publicity and exposure has in turn democratized the industry by engaging and speaking to a broader audience through the use of building walls and private property as their medium of communication and acts of resistance. This illicit nature that has not only proven to be powerful and largely influential but also effective in the formation of a counterculture with its own codes of conduct and set of rules that for many years have cultivated progress. It is this way that the art world now enjoys from artist like Banksy and Shepard Fairey, who have become respected names in society at large. Granting copyright protection to graffiti as a form of pictorial art will certainly bring benefits to the movement like it has brought to many other types of art. For instance, it would increase the economic capital of the artist, incentivizing the creation and progress of new work. This would prevent the likelihood of the artist to be used and abused by large corporations by allowing the artists to have legal control over their work. Graffiti will no longer be recognized as vandalism, rather it would become organized under a systematic structure which would open it to larger markets. Finally, being recognized under a legal system could essentially legitimize the professionalization and commodification of street art. Yet, the fall into capitalism seems far more dangerous than its illegality. Recognizing graffiti art under a systematic structure would force a contraction of abstract ideas and into a uniform methods trivializing the liberty of the act itself. Adding legal systems would not only go against its unique nature, it would also change its meaning and dynamics by forming a hierarchy which, unlike other forms of art where this has happened, would take away the libertinage in which the graffiti movement initially developed and gained purpose. It would mean that it would be governed under the same social body it once rebelled against. Graffiti is a form of art that is not situated in a premeditated space like a museum or gallery, its spontaneity and mediums (whatever form they take) connote valuable information that could not be transferred otherwise. In this case, the uniformation of a rebellious act into a legal system makes no sense. Copyright protection would threaten such mediums by limiting the spaces where work could be protected, genuinely changing the dynamics and possibly damaging the meanings. The purpose and willingness of the artist would not change in the why, but they would face a challenge overcoming questions of how and where to create and not mess with the purity and purpose of the art form. The act on itself would become less rebellious and its bare existence in a private space would corrupt its meaning. The economic impact would be no less detrimental. The economic incentive and monetization of labor inherently corrupts the overall creative process. It is not to say that such corruption is detrimental or damaging. It is certainly rewarding and graffiti artist are no less deserving than other authors. But, in graffiti the collaborative element would somewhat be challenged by the inherent competitiveness that monetization draws. On the other hand, graffiti art is not eternal. Artist have an implicit agreement with its ephemerality. As opposed to other forms of art, this time-full restraints add value and relevance to the outcome and meaning. Not to mention that it is a contributing factor to the influence that graffiti has had on people -- it is an experimental and performative way of art. Graffiti artist have surrendered to the time forces that complement their art. And, instead of fighting these restraints, artists have created ways to integrate them to their art; In fact, it's part of the rebellion against traditional concepts of art. Hence, fixing its value into the traditional monetary system could possibly shape the artist intentions and motives -- retiring them from its genuine and illicit nature. And, these [graffiti artists] for many years have relinquished to the idea of their work being used by others because they are purposely making it part of a public sphere. They rather take the exposure of their work as an opportunity to build a name. The problem comes when large corporations attempt to uphold the public’s power for their economic advantage, like in the case of Revok and H&M. Their work and name is certainly being taken advantage because any type of consent is nonexistent and these speaks to the moral, not the legality, of the importance of protection. In reality, these types of countercultures have already achieved methods to incentivize progress and protect themselves. And their existence under a democratic environment not only has granted them the popular power to exist and be recognized within a global scale but it has protected the movement itself. H&M’s case has settled after experiencing serious backlash from the fan community; their name was called out by prominent figures of the popular art movement such as Kaws. Hence, being that their reputation and name were being threatened, they settled the case. Still, this has only happened because of the popular power of the movement and the fact that this counterculture has been able to regulate itself through the establishment of a series of codes of conduct and rules for the community. Maintaining the dynamics of the counterculture within the culture itself and not being governed by the same system they once went against is perhaps the best explanation for why, for many years, they have avoided law involvement. Taking away the power of the public and granting it to a hierarchical environment would entirely defeat the purpose of existence of graffiti art.

There are, as a matter of fact, different sustainable relying practices to protect the property rights of the author that do not involve copyright action and these are perhaps the most appropriate given the nature of the subject. Self regulated systems, as shown above, have proven to be effective. Also, there could be a system that mirrors that of a community land trust, where protection, ownership and control of the authors belong to the entire culture rather than privatizing the individual’s works. Or is it perhaps time to realize that the cycle of graffiti as an expression of rebellion has come to an end and that the popularity of the street art has condemned this clandestine movement into a capitalist system?

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