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Article: Whether Street Art & Graffiti Can Be Protected As Artistic Works Under Indian Copyright Law?
Author: Shreya Kunwar
Introduction
Section 2(c)(i) [1] of the Copyright Act, 1957 (hereinafter referred to as the “Act”) states “ ‘artistic work’ means,— a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality”. The question that arises on reading this section is whether Street Art & Graffiti can be treated as artistic work for copyright to subsist in them?
Emphasis on Originality
This statutory interpretational issue has gained significant attention in recent years as the quantum of such kinds of art in public spaces have increased manifold and which may or may not be original work of art. Currently, there is no judicial precedent that discusses whether or not various kinds of street art and graffiti can be extended protection under the Act. While paintings and drawings are protected as artistic works, the question arises, ‘whether street art and graffiti can be extended an equivalent protection as original works capable of copyright?’ The aim of this article is to analyze whether they fall within the umbrella of copyrightable artistic works.
As per the Practice And Procedure Manual for Artistic Works 2018, [2] “Any work which is an original creation of an author, or an owner fixed in a tangible form, is capable of being entered into the Register of Copyrights, irrespective of the fact that whether such work possess any artistic quality or not.”
Thus, in order to qualify for copyright protection a work must be original and must be capable of being fixed in a tangible form. (Emphasis added)
A simple understanding of the nature of street art or graffiti would explain that both the requirements as laid down in the Practice Manual are satisfied by these art forms and therefore, they are capable of being recognized worthy of copyright protection. However, as the scope of the term ‘drawing’ is not defined in the statute itself, there is a need to amend the current provisions of the statute and go beyond the existing statutory provision and understand the possible connotations it might have.
Relevance of Expression of Ideas
The courts have upheld the importance of expression of ideas through different kinds of art in their different forms. In Maqbool Fida Husain v. Raj Kumar Pandey [3] [2008 CriLJ 4107] a Single Judge Bench (Sanjay Kishan Kaul, J.) of the High Court of Delhi in its judgment held in favour of democratization of art and held amongst other things, “a liberal tolerance of a different point of view causes no damage. It means only a greater self-restraint. Diversity in expression of views whether in writings, painting or visual media encourages debate. A debate should never be shut out. ‘I am right’ does not necessarily imply ‘You are wrong’. Our culture breeds tolerance- both in thought and in actions.”
The liberal expression of thoughts and ideas was discussed in the famous landmark decision of the Supreme Court of India in R.G. Anand v. Deluxe Films and Ors [4] [AIR 1978 SC 1613] where a Division Bench comprising (Fazalali, Syed Murtaza J. and Singh, Jaswant Pathak, R.S. J.) of the Hon’ble Supreme Court of India held “It is always open to any person to choose an idea as a subject matter and develop it in his own manner and give expression to the idea by treating it differently from others.”
“There can be no copyright in an idea, subject matter, themes…copyright in such cases is confined to the form, manner, arrangement and expression of the idea by the author of the copyright work.” “What is protected is…the original expression of thought or information in some concrete form.” (Emphasis added)
Street arts do involve creativity and skill and labour and they must be righteously recognized as artistic works.
Conclusion
To sum up, freedom of expression of thoughts and ideas is protected as Fundamental Rights guaranteed by the Constitution of India. When the same are portrayed through various art forms, they are still very much an expression worthy of protection and IP laws being in consonance with the Constitution will not be an impediment for the same. However, it is difficult to ascertain whether or not street art and graffiti which are newer forms of art and which may or may not be confined to only paintings or drawings can be considered within the scope of artistic work under the Act. Moreover, certain states do have their specific laws which recognizes these art forms as defacement of property and have some penal consequences attached to the unauthorized creation of these forms of art in public spaces. No formal legal protection has been conferred on street art and graffiti till now.
Endnotes:
[1] https://copyright.gov.in/Copyright_Act_1957/chapter_i.html
[2] https://copyright.gov.in/Documents/Manuals/Artistic_Manual.pdf
[3] Maqbool Fida Husain v. Raj Kumar Pandey [2008 CriLJ 4107]
[4]. R.G. Anand v. Deluxe Films and Ors [AIR 1978 SC 1613]
Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.
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