Naomi Messenger is a seconded lawyer from KPMG Legal
Bringing art to the street and to the community can range from traditional public art such as sculptures and murals, to the arguably less legitimate and sometimes illegal act of spray-can and chalk art, graffiti. Spray-can artists don't do their schooling at art school. Predominately they must begin by honing their techniques and reputation from spraying unauthorised pieces on walls, buildings, fences and footpaths, both public and private property.
The prevalence of graffiti on the street and corporate funded festivals for spray- can art are an interesting mixture of illegal and legal manifestations of the same art-form. Arts Law recently advised on the legal issues involved in using graffiti or spray can art.
Graffiti is a well-covered topic of legislation in NSW and is included in five statutes, making the activity and associated paraphernalia (e.g. possession of a spray can), an illegal activity. Similar legislation exists in the other states. If the artist/offender is a minor, three further statutes will apply . Both permanent (e.g. paint) and temporary (eg. chalk) graffiti are prohibited.
Penalties include fines, imprisonment and community service orders. The fines range from $220 to $2200. Community service orders involve the artists removing their own work. The general crime of maliciously destroying or damaging property, often used in relation to graffiti artists, carries the most severe penalty of up to 5 years imprisonment.
The potential liability doesn't stop there. A spray-can artist may have committed trespass in the process. Trespass occurs when they directly and intentionally enter or remain on land, or cause some object to come into contact with land, which is possessed by someone else. Substantial damage does not need to be proven. If the trespass is continuing, (e.g. paint remains there) this could result in repeated actions in trespass. However, if the trespasser merely damages the land or alters its character, damages can only be claimed once.
It is unlikely that the usual defences to trespass such as implied licence, consent, necessity, self-defence or legal authority will be available to a spray-can artist.
Spray-can artists usually come prepared. They have preliminary sketches of their proposed paintings. They will generally have copyright in both their sketches as original artistic works, and the graffiti art copyright gives them the exclusive right to reproduce their artworks and to adapt them from two-dimensional to three-dimensional artworks.
The term of copyright protection may differ if the artist is working under a pseudonym, that is their individual identification 'tag'. Anonymous and pseudonym works are only protected for 50 years from first publication; although if the identity of the author is known or can be ascertained, the duration will be the life of the artist plus 50 years.
The spray-can artist will also have moral rights in their works, being:
- right of attribution of authorship;
- right not to have authorship of a work falsely attributed; and
- right of integrity of authorship of the work.
The removal or destruction of a painting may be an infringement of the artists moral right of integrity in the work. Ordinarily, the infringer would be required to give the artist notice of the removal or destruction, give the artist access to record the work and offer to consult with the artist as to the removal or destruction of the work.
However, the party who wants to remove or destroy the graffiti is likely to argue that it was reasonable in the circumstances to destroy or remove the work, as it was created while committing a crime and trespass. Importantly, by attempting to enforce the moral rights of a work that was created as part of a criminal act, the artists would expose themselves to criminal prosecution.
The Local Government Act empowers local governments to remove graffiti without a landowner/occupant's consent if the painting is on a surface, which can be accessed and seen by the public.
This art form struggles to gain respect from certain areas of the public because of the criminal acts and trespass associated with the creation of the works. Social schemes, such as the Graffiti Traineeships Grants Scheme, and corporate sponsored art exhibitions dedicated to graffiti, help artists find a forum for their art.
Regardless of the supporters and detractors, artists who express themselves by graffiti expose themselves to criminal and civil liabilities, and ultimately undermine their legitimate rights to copyright and moral right protection when creating works involves the commission of a criminal offence.
This article is dedicated to Simon Henderson, better known as Kidoke, a spray can artist who tragically lost his life pursuing his love of graffiti in early November 2002.
Further information is available at the NSW Graffiti Information page: http://www.graffiti.nsw.gov.au