So under your scenario, you wouldn’t be able to paint your own building if “Banksy” vandalized it?
Practically speaking, you wouldn’t want to paint over a Banksy. Not when you can sell it for perhaps a million bucks.
IANAL either, but wouldn’t Ex turpi causa non oritur actio apply?
From Wiki:
Ex turpi causa non oritur actio (Latin “from a dishonorable cause an action does not arise”) is a legal doctrine which states that a plaintiff will be unable to pursue legal remedy if it arises in connection with his own illegal act.
Two years ago a building owner in New York painted over all the exterior and interior wall art that he had explicitly permitted in the years the building was unoccupied. The graffiti artists had copyright interest in their legal graffiti but they had no cause of action to stop the landlord’s doing what he wanted with his property.
The “moral rights” thing, in the USA at least, only allows an artist to sue for damages if his work is destroyed by the owner - it’s not a criminal matter. So Banksy would have to reveal his identity to file a suit - I think a lawsuit by an anonymous plaintiff would be quickly dismissed.
As noted, current US copyright law doesn’t appear to have any way to officially put something into the public domain. Something like the CC0 license isn’t a guarantee of being in the public domain in the future.
You might decide not to pursue any legal matters during your lifetime, but your heirs can ignore your wishes and start filing lawsuits.
(being revised)
But there’s got to be limits on this. Otherwise someone could break into my house, tag my bedroom and I can’t paint over it?
On page 1953 here case law is cited that says illegally created art is not protected under VARA: http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3644&context=flr
I’m reaching way back to law school on this one, as in more than 15 years ago, but from what I recall back then: in the U.S. anyway, the work has to be a work of some stature, in that it must be recognized by the art community as important in some way. A simple graffiti tag by a random teenager wouldn’t meet this criterion at all.
So, if some famous artist broke into your bedroom and painted something on your wall, and it was a “work of stature”, you still aren’t necessarily stuck with it. And again, this is my barely-recalled, decades-old information: your first step is to notify the artist that you’re going to remove it, paint over it, blow it up, whatever. The artist then has 30 days to remove it, rescue it, record and preserve it, or whatever action they want to take. When that time period is up, break out your brushes and fire at will.
Is there an “unclean hands” exception? It seems rather odd for an artist who paints on someone else’s private tangible property without permission to have the right to sue even a third party with respect to intellectual property rights in that work.
I said they would have the same rights under copyright law. Copyright law only requires originality, creative expression, and fixation for rights to be earned.
And it conveys only a limited set of exclusive rights—reproduction, derivative works, distribution, performance, and display. Speaking generally, the injury done to the property owner doesn’t result in the property owner somehow getting those rights. As in the 5Pointz case, the property owner certainly can paint over the damage, but that’s not a violation of any exclusive right under the Copyright Act.
The creator of a work of “fine art” that is unique or produced in limited series has some additional rights to prevent mutilation or destruction of the work, but I will have to do some research to see how that applies. I would think that the VARA doesn’t apply to vandalism.
Seems like graffiti artists should presume their works to be ephemeral, and anything that encourages them to deface other people’s property should be discouraged.
I think only a handful of graffiti artists produce work of real value (Banksy, Keith Haring, Jean-Michel Basquiat, etc.). Most of those graduate from producing work on other people’s property, partly because it’s hard to sell such stuff.
Can any lawyers answer this point?
That doctrine is rarely cited in court, and SCOTUS has cautioned against such common law barriers to relief where important public policy may be at issue. Nonetheless, a defendant who owns a vandalized wall and who is now being sued by a graffiti artist could conceivably raise the argument in his defense. AFAIK, no one has raised this argument in the context discussed here (presumably because no graffiti artist has tried to sue a property owner under the copyright act).
Just bumping this to say that it turns out that graffiti art does fall under V.A.R.A., according to this recent decision:
That is not exactly apropos for the original question of this thread, but the thread had wandered a bit and this particular situation was brought up.
RS
Wow. That was a very recent ruling and I’m sure they’ll appeal it as it’s for $6M.
And, no business owner will ever allow graffiti on their property ever again and will probably prosecute with enhanced fervor anyone who tags their property.
Totally different jurisdiction, but I now wonder what would happen in the US in cases like
TLDR version: Well known artist, entertainer and serial pedophile Rolf Harris painted a mural in a shop with the consent of the owner in 1990, before point 3 on that list had become known. After the court case, the owner got a bunch of abuse victims together and they all painted over it.
Does that court case imply that in the US Rolf could prosecute for that?