Copyright in graffiti is an interesting and relatively unexplored area of law in Canada. It is still unclear what kinds of protections a graffiti artists' work can be afforded, but by looking at the relevant sections of the Copyright Act and examples of caselaw on related topics, it is possible to make predictions about how some of the main issues surrounding the subject might be dealt with by Canadian law. Continue reading for an exploration into the issues relating to reproduction and moral rights that graffiti might pose for Canadian courts and what they might consider if such issues were to appear before them.
Does Copyright Subsist in Graffiti?
Canadian courts have not yet definitively ruled on whether or not graffiti attracts copyright protection, but based on the Copyright Act, it seems likely that it would.
As per section 5(1) of the Copyright Act, copyright subsists in every original literary, dramatic, musical, and artistic work, provided certain conditions are met, such as it existing in a fixed form. There is no requirement that the work must be created in some sort of "lawful" manner. So if a graffiti artist creates an original artistic piece in a material format such as on the side of a building, this piece should in theory attract automatic copyright protection like any other original, fixed artistic work.
The Issue of Reproduction
One of the concerns that has arisen in the US and that will eventually have to be dealt with by the Canadian court system when it arises in Canada, is what happens if a work of graffiti appears in the background of another work? The right of reproduction in the Copyright Act keeps individuals from incorporating copyrightable art in their own works without permission from the copyright owner.
An example of reproduction would be photographing a work of art for a magazine. The photographer reproducing the work of art in a photographic form technically requires the permission of the owner of the work of art's copyright before reproducing it. So if a work of graffiti appears in a photograph of a building, is this infringement?
The answer is that it would depend. If copyright subsists in graffiti, then to prominently and purposefully reproduce it in a photograph will probably raise issues. However, there are two sections of the Copyright Act that are worth highlighting because they might provide possible defences to an infringement claim if someone reproduces a work of graffiti in another work without the artist's permission: section 30.7. and section 32.2(1)(b).
- Section 30.7 deals with incidental use of a work. It states that it is not an infringement of copyright to include a work in another work "incidentally and not deliberately." This means that if a work of graffiti is shown in the background of a picture or a video by accident, the infringer might be able to defend that use on the basis of incidental inclusion.
- Section 32.2(1)(b) deals with permitted acts. It states that it is not an infringement of copyright to reproduce a work of artistic craftsmanship that is permanently situated in a public place or building. This means that if a work of graffiti in a public space could arguably be considered a work of "artistic craftmanship," it may not be considered infringement to have it present in a photograph or video.
As well, it is worth noting that as with any use of copyrightable works, the common fair dealing exceptions under section 29 of the Act may also apply to the use of a copyrightable piece of graffiti if the use/reproduction's purpose falls under the categories of research, private study, education, parody, or satire.
The Issue of Moral Rights
Another major copyright concern that arises from the creation of graffiti is the issue of moral rights. Moral rights offer artists (a) the right to be associated with their work and (b) the right to the integrity of their work. The right of integrity is the right not to have a work modified or associated with a good or service that could damage the artist's reputation.
"Destruction" of a work in its entirety does not amount to a violation of an artist's moral rights because once the work is gone, there is no possibility of the author's reputation being damaged by it any longer and to suggest otherwise would problematically allow for the preservation of an artist's moral rights even after their work no longer exists. However, in the past, Canadian courts have awarded damages to artists for the destruction of a large portion of their work, categorizing the almost complete demolition as "mutilation" of the work that amounts to a violation of an artist's integrity (see: Vaillancourt c Carbone 14,  JQ no 3905). The question then becomes whether the right of integrity would allow a graffiti artist to claim an infringement of their moral rights if someone were to "mutilate" or deface their work.
The answer is that it is possible. The Canadian courts have not yet had any cases before them that would allow them to decide on this issue, but if it were to come before them, it is possible that they could view graffiti in the same way that they view other artistic works and afford it the same protections, even with regards to moral rights. However, it is also possible that the courts could offer graffiti copyright protection, but treat it similarly to copyrightable works like obscene materials. Canadian courts have found that copyright can subsist in obscene materials, but they have limited the remedies available for the infringement of said materials (see: Aldrich v One Stop Video Ltd,  BCJ No 1035). The similarly oftentimes criminal nature of graffiti and the fact that the mutilation of graffiti could arguably be an act that does not damage a graffiti artist's reputation in the same way as the mutilation of another artist's work could potentially mean that courts would be reticent to grant a graffiti artist all of the remedies that are normally available to artists whose rights are infringed.
The extent of a graffiti artist's right to protection and remuneration in relation to any infringement of their work will most likely eventually have to be determined by the Canadian court system, but in the interim, those who are looking to either use graffiti in the background of videos or photography or perhaps looking to publicly alter or deface someone's already created graffiti work should be mindful that doing so could potentially engage the rights of the graffiti artist.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.