Street Art, between sanction and consecration

Street Art has become more and more successful with an increasingly large public audience since its birth in the early sixties. Exhibitions, specialized auctions and prizes have been devoted to this new art.  These artists utilize various techniques such as stencils, tagging, mosaic or calligraphy and often deliver political messages.

During the 2000s, the street art reinvented its codes by innovating by using screens and lights, smartphone applications and mapping in order to create an interaction with its audience. This has often been described as the birth of “Street Art 2.0”.

Street Art is thus meeting a true artistic consecration and is regarded as a real artistic stream having its own codes and its own self-recognized artistic “community”. Some of its members often co-operate on projects.

However, is street art legally recognized?  Or, should it be qualified as vandalism and thus punished to the extent that walls, vehicles and boards are used as supports (or media) in various places?

In France, the law provides for legal sanctions if a tag is using a support without its owner’s authorization. Indeed, “the fact of tracing inscriptions, signs or drawings without previous authorization, on walls, vehicles, streets or street furniture is punished by a fine of 3,700 euros and a sentence of community service in case of slight damage.” The sanction can be up to a 30,000 euros fine and two years imprisonment if the art work has caused “destruction, degradation or deterioration of a commodity belonging to somebody else”.

Thus, some artists do not hesitate to ask for authorization before beginning their artistic creation. This is so, for example in the case of Miss Tic who realizes her stencils on Paris’ walls after obtaining a prior authorization from the owners.

Now, can works of street art be considered as works of art in a legal sense?

Copyright does not include any value judgment about works. The French Intellectual Property Code (CPI) “protects the authors’ rights for any type of works of the mind whatever kind, shape, merit or destination” (article L. 112-1 of the CPI).  The required and sufficient condition of copyright is the originality of the work. So it appears that works of Street Art are protected by copyright provided that they are original and show the characteristic style of their author.

We note that there are few cases decided concerning the protection of these works of art and graffiti as many are illicit. Street art therefore poses a real problem of conflict between property rights and author’s rights. What right should be considered the strongest?  The legislator did not settle this question; there are no specific legal provisions regarding works of street art. Case law does not enlighten us much more with only some exceptions.

Recently, the French-Suisse artist, Monsieur CHAT, who had produced cat heads in August 2014 on the walls of the Châtelet metro station which was being renovated, was sued by the Paris subway company RATP, which was no doubt tired of spending a considerable amount of money each year to clean up these tags.  However, due to a procedural error, the legal action was abandoned in October 2014, so that the issue to know whether these tags would be considered an act of vandalism or not was never judged.

To avoid legal proceedings and sanctions the urban artists should therefore ask the necessary authorizations of the owners of the walls.  However, I see a certain paradox as it concerns spontaneous and fleeting art.  Certain urban artists who no longer wish to see their works destroyed more or less rapidly have decided to leave the streets…  The first to have done so, Keith Haring, had many works in the New York streets and subways and finally became successful at his first one-man show in l982 at the Gallery Tony Shafrazi in New York.

Gregos-CNART

The artist Gregos showed at the Paris Bar Center in October 2013 his bronze, plaster and crystal faces that you might have already noticed on walls in Paris or elsewhere. A work of the artist MissTic, who is represented by the gallery Lélia Mordoch, was also showed during this exhibition that I had organized on the theme of stencils.

CNA’RT 2013, 2nd edition.

Jeff KOONS: Tribute to contemporary works of Art or plagiarism? Inspiration or imitation?

Two works from Jeff KOONS which had been selected for a retrospective exhibition dedicated to this artist at the Centre Pompidou museum in Paris from 26 November 2014 to 27 April 2015 have been largely commented by the press.

The first piece of work, called “Fait d’hiver” and the second one called “Naked” are part of a series of works entitled “Banality”.

The first one – Fait d’hiver – is a porcelain sculpture made in 1988. It represents a pig coming to assist a woman lying in the snow. Just after being exhibited, it was removed because Francis Davidovici complained that this sculpture was imitating one of his advertising campaigns designed in 1985 for the brand “Naf Naf”.

The second one – Naked – is a porcelain sculpture representing two naked young children which will probably never be showed during this retrospective. While it was in transit between the US and France, the wife of the photographer Jean-François Bauret (who died in January 2014) would have summoned Jeff Koons for plagiarism. The sculpture allegedly imitated one of the photographer’s pictures.

Jeff Koons’s creative process, alike that of other contemporary artists, relies mainly on a reference to other art works. This American artist has already been sued for infringement in the US because of exhibitions of some pieces of the series “Banality”. These works are inspired from existing works designed from trade objects. They are also inspired from photos published in the media. Such works which are directly inspired from existing works while adapting them to new supports illustrate some of the difficulties for copyright law in making a clear distinction between an authorized inspiration and a forbidden imitation.

Several questions arise:

  • Is an artist allowed to design a piece of art directly inspired by another one without asking an explicit authorization of its author?
  • How to define clearly the limit between inspiration and reproduction? Between inspiration and infringement?
  • When can we find there is plagiarism?

First, let’s remember that plagiarism, which is generally defined as the reproduction of the content of somebody else’s work, is not in itself a legal concept and is punishable only when the elements of infringement are found.

In France, the Article L. 122-4 of the Intellectual Property Code provides that “Any total or partial representation or reproduction done without the consent of the author or his/her eligible parties or legal successors is unlawful. It is the same for translation, adaptation or transformation, arrangement or reproduction through any kind of art work or process.”

However, in order to be able to punish an infringement act, it is necessary to determine whether the elements that have been reproduced or adapted are effectively protected by copyright. In particular, one must establish whether it is only using an idea or of the form which is expressing the idea. In accordance with judicial precedents of the interpretation of the Article L. 111-1 of the Intellectual Property Code, it is only the material expression of ideas that are concretized by the design of a work which is protected by copyright. The only notion of using another artist’s idea does not constitute copyright infringement.

So, concerning the sculptures of Jeff Koons which reproduce and adapt photos and pictures, do they just take up other artists’ ideas or do they really reproduce their concrete form?

In order to be able to decide whether there is infringement; one must take into account the relative importance of the content which has been reproduced. In other words, to what extent has the author brought about some originality and personal mark. It would seem that the sculptures of Jeff Koons do not only take after other artists’ ideas but also some salient characteristics of the form of their works. To this extent, French courts could conclude to an infringement offense.

Nevertheless, even if we consider that the litigious works are reproductions or adaptations of other works, one must still ask ourselves if this kind of imitation is not authorized on the grounds of a copyright exception, such as the right of parody. The Article L. 122-5 of the Intellectual Property Code provides that: “When a work has been divulgated, the author cannot prohibit (…) 4° parody, pastiche or caricature…”

The equivalent exception in US law, called “Fair Use”, has been argued by Jeff Koons before the American Courts. However, these courts have not always accepted such an exception, since it would appear that he lost two of his three trials.

If the judicial procedures concerning the sculptures “Fait d’hiver” and “Naked” eventually come to a final judgment, without any mediation or transaction to stop them, it will be interesting to know what will be the decision made by the French Courts with respect to the application of the law related to copyright infringement.