Juel Barnett November 5 2018 Is graffiti protected by copyright? KISCH IP | Intellectual Property - South Africa Juel Barnett Intellectual Property IntroductionCopyright protectionPublic artExclusions to copyright infringementCopyright Amendment BillIntroductionGraffiti is generally no longer considered to be a work of vandalism or an act of destruction of public property. Instead, it has become a marketable commodity, with some fashion labels and major corporations even using it in their advertising campaigns. However, graffiti's legal status as art has not been established, which has raised a number of issues concerning its commercial use and begs the question of whether it can be protected by copyright.There are three terms commonly used to describe this kind of art:'street art' – which is an umbrella term for most public art (both legal and illegal), including commissioned murals, graffiti and public art displays;'graffiti' – which is defined as illicit public art and generally includes spray-painted murals, writings or drawings produced without the property owner's prior permission; and'vandalism' – which is defined as the wilful destruction of property.Copyright protectionIn order to qualify for copyright protection, a work must be 'original' (ie, the author or creator must have created it through their own skill and efforts without copying another work) and reduced to material form. Graffiti meets both of these requirements, as it is both creative and a tangible medium of expression.There are no formal requirements in this regard; rather, copyright subsists in an artistic work as soon as it is created. The Copyright Act (98/1978) grants the creator or owner of a work the exclusive right to, among other things:reproduce or authorise the reproduction of the work;publish or authorise the publication of the work; orinclude or authorise the inclusion of the work in a cinematograph film or TV broadcast.However, does this mean that a graffiti artist can claim copyright protection when their graffiti is applied to statues and buildings (legally or otherwise) and appears in a video, film or photograph of, for example, the Johannesburg skyline or another public space?Public art'Public art' may be defined as visual artwork that has been planned and executed with the intention of being displayed in public spaces, which includes architectural works.Most people expect to be able to photograph or film whatever they see in a public space, including public art. This expectation conflicts with the exclusive rights of the creator or owner of the copyright in such works. Although some public art has entered the public domain, such as the Union Buildings in Pretoria, due to the expiry of the work's copyright term (for artistic works, 50 years from the end of the year in which the creator dies), many are still under copyright protection. As such, the (mostly incidental) use of these works creates a potential risk for photographers and videographers in public spaces.Exclusions to copyright infringementThe Copyright Act contains several exclusions to copyright infringement, such as fair dealing and freedom of panorama. Further, Section 15(1) of the act provides a general exception to the protection of artistic works and states that the copyright in an artistic work will not be infringed by its inclusion in a cinematograph film or TV broadcast where the inclusion is merely by way of background or is incidental to the principal matters represented in the film or broadcast. This exception can lead to ambiguity, as it is not always clear what constitutes the 'principal matter' of a work. An example would be a wide shot of a public square, as all of the elements of the square could constitute principal matter. Further, South African case law provides no guidance on the interpretation of the concept of 'incidental inclusion' by way of background.Freedom of panorama generally allows for the creation of images (eg, photographs, films and paintings) that predominantly include three-dimensional copyrighted works – such as buildings and sculptures – which are permanently or ordinarily located in a public space, without the copyright owner's permission.Section 15(3) of the act further provides that the copyright in an artistic work will not be infringed by its reproduction or inclusion in a cinematograph film or TV broadcast if the work is permanently situated in a street, square or similar public place. Although a public gallery may qualify as a public space, these often restrict photography and videography on their premises, leading to additional ambiguity.Further ambiguity arises from the meaning of the phrase 'permanently situated', as the act provides no guidance on the interpretation of this concept. This means that artistic works which are temporarily displayed in the public space would not qualify.Copyright Amendment BillThe Portfolio Committee on Trade and Industry recently published specific clauses of the Copyright Amendment Bill (B13-2017) for public comment. The draft bill seeks to replace Section 15(1) of the Copyright Act with a new clause relating to the incidental or background use (previously "inclusion") of an artistic work within another work.In seeking to address the limits of the existing Section 15(1) (which does not include photographers and other visual artists in the exception, which is restricted to inclusion in cinematograph films, TV broadcasts or transmissions in a diffusion service), the legislature has attempted to broaden the general exception relating to the incidental or background use of an artistic work to apply to all types of work.It is difficult to see how this exception could apply to the use of an artistic work in, for example, a sound recording or a literary work. Perhaps the bill should specify the additional types of work to which this exception will apply, such as:cinematographic films;TV broadcasts;transmissions in a diffusion service;photographs;drawings;engravings; andpaintings.Further, the application of this exception has been extended to cover the background or incidental use of an artistic work that is situated in a public space, leading to concern that it may be open to abuse. The mere fact that an artistic work is located in a public place means that its use would not constitute an infringement, providing that the infringer could show that its inclusion was of a background or incidental manner.A knock-on effect of this amendment is that artists may not want to display their artistic works in public places for fear that other parties could use these (normally copyrighted) works in their own works under this general exception.The South African Institute of Intellectual Property Law, among other parties, has submitted its comments to the portfolio committee in order to address a number of issues that the bill presents. Thus, the bill's final form remains to be seen.For further information please contact Juel Barnett at KISCH IP by telephone (+27 11 324 3000) or email ([email protected]). The KISCH IP website can be accessed at www.kisch-ip.com.