People say graffiti is ugly, irresponsible and childish… but that's only if it's done properly - Banksy

The growth of street art in India is a dynamic journey through the country's cities, encapsulating the spirit of cultural expression and social critique. From the bustling streets of Mumbai to the ancient alleyways of Varanasi, street art has evolved into a powerful form of storytelling that reflects the nation's many tales. Notable pieces, ranging from complex murals to thought-provoking graffiti, decorate urban environments, transforming once-forgotten walls into vivid canvases that connect with local communities.

However, the ephemeral nature of street art presents a particular challenge to painters. These ephemeral artworks, created in public areas, are constantly threatened by erasure, weathering, or unlawful change. an impermanence not only emphasizes the temporal beauty of street art, but also shows the critical necessity to address the preservation issues that artists confront when attempting to make a lasting mark on their communities through an ever-changing and transformative art form.

As the cultural value of street art grows, the lack of clear legal protection presents a difficulty to the artists. This blog delves into the spectrum of street art in India, praising its cultural significance while highlighting the urgent need for a more defined legal framework to protect the vision and creations of street artists across the country.

Intellectual Property Challenges for Street Artists

Street artists in India face unique challenges in protecting their intellectual property, as the ephemeral nature of their work collides with a lack of clear legal frameworks. Unauthorized use of their works, ranging from commercial reproductions to digital adaptations, is a widespread issue. The very public nature that gives street art its power also exposes it to potential exploitation, as artworks appear in advertisements or merchandise without the artist's permission.

Another significant challenge is the destruction of artwork, as murals and graffiti are frequently destroyed by weather, vandalism, or municipal clean-up efforts. The lack of explicit legal protection worsens the vulnerability. The complex movement between public space and artistic ownership stays mostly unregulated, leaving street artists with few options when their creations are unauthorized manipulated or removed.

Copyright and Street Art:

What is street Art?
"Street art is nothing else but urban poetry that catches someone's eye - Christian Guémy C215".
The terms 'street art' and 'graffiti' generally invoke an image, which is a painted public surface of some sort. Some consider street art to be an annoyance, while others see it as a tool for conveying opposing viewpoints, posing difficult questions, and communicating political issues. Street art is frequently viewed as a tool for advancing a craftsman's personal agenda, which includes contemporary social concerns, with city veneers serving in a similar role to the good old soapbox; a place to praise the artist's opinion on a variety of issues ranging from legislative issues and environmentalism to commercialization and utilization.

Legal provisions:
"Street art" is an umbrella term for artwork produced in a public area and which is why it does not necessarily only mean graffiti. Therefore, 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."

The Copyright Act, 1957 talks about the detailed provisions related to artworks in India, they are as follows:

• Section 2(c) [1]: talks about what artistic work means: a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether any such work possesses artistic quality.
• Section 2(y)[1]: "work" means any of the following works, namely:
  A literary, dramatic, musical or artistic work; making it eligible for copyright protection under.
• Section 2(za): "Work of sculpture" includes casts and models.
• Section 13 (1) [a]: talks about artworks in which copyright subsists i.e. original literary, dramatic, musical and artistic works; As a result, any copyright claim made by an artist for a mural is entirely consistent with Indian copyright law.
• Section 13(5): In the case of [work of architecture], copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.

Technically, copyright exists as soon as it is created, so there should be no formal requirement to meet the conditions and graffiti being one which meets the criteria required for copyright protection because it is artistic, requires a physical medium of expression and is original in nature. Determining the originality, the courts through several decisions, University of London Press Ltd. v. Tutorial Press Ltd, being the landmark case, the Court applied the 'Sweat of the Brow' doctrine, which means, an author acquires rights during the creation of a work of simple diligence, such as a database or directory, significant creativity or "originality" is not required. Certain steps must be taken to determine whether it is original. Furthermore, the "Modicum of Creativity" test requires that the work contains minimal originality to be authentic and copyrightable.

Legal Precedents and Street Art Cases:

While legal precedents for street art in India are limited, notable cases shed light on the larger challenges that artists face in the public sphere one such landmark case of Amarnath Sehgal V Union of India established an important precedent for interpreting moral rights, providing authors with an additional layer of protection. It also represented a significant step forward by allowing special reliefs, such as the restitution of the copyrighted work to the author, which had never been seen in copyright and moral rights litigation.

The facts of the case were Amarnath Sehgal, a renowned sculptor, was directed to create a mural for the lobby of Vigyan Bhavan. It took 5 years to complete the mural. However, murals on the building's walls, including Amarnath's work, were pulled down without prior information or consent by the government during renovations. Minor damage was caused to the mural during this process. As a result, Amarnath sued the government, claiming that they violated his moral rights by mishandling and storing his artwork without his permission.

In this case, the court emphasized the critical importance of moral rights in an author's work, emphasizing that these rights remain intrinsic to the creator even after the sale. The court's decision unequivocally established that destroying and mutilating an artwork is a clear violation of the author's moral rights. In the case of a mural that had been partially mutilated and damaged, the court recognized that such actions were detrimental to the artwork and harmed the author's reputation, regardless of ownership. As a result, the author was properly compensated for the violation of their moral rights under Section 57[5] of the Act which grants authors special rights.

The future of Street Art and IP in India:

Digital Platforms and NFTs:

With the emergence of blockchain technology and the growing popularity of NFTs, street artists are increasingly looking to digital platforms to protect and monetize their work. The combination of street art and digital platforms, particularly the use of Non-Fungible Tokens (NFTs), represents a game-changing strategy for artists looking to protect and monetize their work. Artists address the transient nature of public art by tokenizing their physical or digital art as NFTs, establishing digital ownership and authenticity on a blockchain. Smart contracts that accompany NFTs allow artists to enforce royalty payments with each resale, generating a steady revenue stream and fostering a direct connection with a global audience.

This transition to digital platforms goes beyond static visualizations, allowing artists to create dynamic digital collectibles and participate in virtual galleries. However, the use of NFTs in street art is not without complications. Environmental concerns about blockchain energy consumption have sparked debate, prompting some artists and platforms to investigate more sustainable options. As the landscape continues to develop, artists and audiences must be educated and aware of the potential benefits and drawbacks of this innovative intersection of street art and blockchain tech.

Conclusion:
As rightly said by Ben Eine "Graffiti writers will never stop. They'll just evolve. It's interesting what ideas people come up with and how it all extends forward" and as we look to the future of street art and intellectual property in India, the canvas is both challenging and full of possibilities. In this growing narrative, the intersection of legal reforms, technological innovations, and a cultural renaissance emerges as a ray of hope for street artists.

The promise is not only about legal recognition, but also the dynamic relationship of community engagement, artistic entrepreneurship, and a shared understanding of street art's profound impact on our cultural fabric.
The fate of street art will be shaped in the coming chapters by collaboration among artists, authorities, and communities. When the colors of protection, appreciation, and acknowledgment are combined seamlessly, they have the power to transform the fleeting beauty of street art into a legacy—a testament to the resilience and creativity that define the heart of India's streets.

References:

1. https://www.indiacode.nic.in/show-data?actid=AC_CEN_9_30_00006_195714_1517807321712&orderno=13
2. https://indiankanoon.org/doc/797096/
3. https://indiankanoon.org/doc/121334999/
4. https://en.m.wikipedia.org/wiki/Amar_Nath_Sehgal_v._Union_of_India
5. https://ksandk.com/ipr/street-art-and-copyright-in-india/
6. https://www.foxmandal.in/art-meets-law-the-uneasy-tussle-of-street-art-and-intellectual-property-law/
7. https://www.barelaw.in/street-art-and-graffiti-laws-in-india-balancing-expression-property-and-culture/
8. https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Literary_Work.pdf
9. https://en.m.wikipedia.org/wiki/Sweat_of_the_brow#:~:text=Sweat of the brow is, originality is not required.

Written By: Tushika Asthana, Bharati Vidyapeeth University, New Law College Pune
Email: [email protected]