What Is A Mural?

Murals are artworks painted on walls. Michaelangelo's ceiling at the Sistine Chapel, the exquisite frescoes of Ajanta and Ellora and Banksy's Girl With A Balloon stencilled on the walls under Waterloo Bridge at London's Southbank – all are murals. So is graffiti, – which is commonly found on city walls the world over. Often an insignia of pride and culture, murals are a significant medium of showcasing history, traditions, customs and sentiments. The capital city of India, Delhi, houses a vibrant mural community. The Lodhi Art District is India's first art district and home to over 65 stunning murals by national and international artists. Such mural sites enjoy public adoration which also leads to their becoming a part of advertising and marketing campaigns run by brand owners and social media influencers.

As appreciation for this art form, particularly street art, rises and embeds itself in the public consciousness, with growing utilisation in commercial advertising and marketing, artists are increasingly asserting proprietary rights over it. This article delves into the nature of intellectual property rights that vest in such works. Legally enforcing these rights can be tricky, particularly in India, given the myriad interpretative tussles involved vis-à-vis the law and exceptions, as well as the risks and uncertainties associated therewith.

A “mural” is defined by the Cambridge dictionary to mean “a large picture that has been painted on the wall of a room or building”. In terms of the Indian Copyright Act, 1957 (the ‘Act'), a mural would fall under the definition of “artistic work” under Section 2(c) of the Act as well as under Section 2(y), and would be vested with copyright protection under Section 13. Therefore, a claim of copyright protection in respect of a mural by an artist would be well within the bounds of Indian copyright law. Coming to the reproduction of murals, under the Act, any reproduction of a protected work in any material form to communicate the work to the public - including depiction in a 3D/2D work, inclusion in a cinematograph film, issuance of printed copies of the work etc. would be the exclusive right of the copyright owner - either the artist itself or any organisation to which rights in the mural may be licensed. However, there are notable exceptions and the de minimis doctrine is one of them.

De Minimis

De minimis refers to copying that is too trivial in nature – the copying in such an instance falls within ‘fair use'. A decision in Gayle v. Home Box Office, Inc. illustrates the point well - here the US District Court for the Southern District of New York dismissed copyright claims made by a graffiti artist against use of his work by HBO series ‘Vinyl' in the background. In one episode of the show, a woman is seen walking past a dumpster painted with graffiti that says “art we all.” The graffiti artist claimed this depiction violated his copyright and trademark rights. Per the court, the artist's claims were premised on a fleeting shot of barely visible graffiti in the background of a single scene where the art appeared for no more than two to three seconds. The graffiti was not showcased by itself or visible in a close-up and played no role in the plot. Accordingly, the court found the said use to be too fleeting, unsubstantial and de minimis.

In India, Section 52 of the Act carves out specific fair use exceptions in this context. Section 52(1)(u) states that it would not be infringement of copyright to include in a cinematograph film any artistic work permanently situated in a public place or any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film. Section 52(1)(t) then provides that publishing or making of a painting, drawing, engraving or photograph of a sculpture or other artistic work under the statute, would not amount to infringement of copyright, if such work is permanently situated in a public place or any premises to which the public has access. In this manner, both provisions endorse the de minimis position.

That said, there is a dearth in pronouncements on this specific subject in
India. However, we discuss two cases from the United States below which make interesting, and very relevant, points.

Fair use exceptions regarding inclusion of publicly situated works are echoed in the Architectural Works Copyright Protection Act, 1990 (AWCPA) in the United States which states that copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. This provision was relied upon by Mercedes in 2019 before the US District Court, Eastern District of Michigan (Mercedes Benz, U.S. v. Lewis, Case No. 19-10948 (E.D. Mich. Sep. 11, 2019), seeking declaratory judgment against artists who threatened Mercedes with copyright infringement. This was on account of Mercedes' use of certain photographs on its Instagram page consisting of its new G 500 truck driving past the murals of the artists in question. The court determined that Mercedes had alleged a plausible claim under the AWCPA that would protect its rights to photograph publicly visible buildings containing defendants' murals, although it did not pronounce a final judgment on the question of law as the case was ultimately settled.

Even before Mercedes, in the case of Leicester v. Warner Brothers [No. CV-95-4058-HLH (CTX), 1998 WL 34016724 (C.D. Cal. May 29, 1998)], the US Ninth Circuit considered ‘whether a sculptural work commissioned as part of an architectural project should be afforded copyright protection after it was used by Warner Brothers in its film, Batman Forever'. Andrew Leicester, an artist known for large scale public art, had designed an entire courtyard space, called the Zanja Madre (which he registered as a ‘sculptural work'), built adjacent to the 801 Tower in downtown Los Angeles. In 1994, the 801 Tower and four towers that form its streetwall on the south side of the building became the Second Bank of Gotham in the movie Batman Forever. Leicester claimed copyright infringement for inclusion of the 801 Tower and streetwall without his permission. The district court found that the streetwall towers (even though they had artistic elements) are part of the ‘architectural work' and pictures of the streetwall towers along with the 801 Tower did not constitute infringement pursuant to the exemption for pictorial representations of buildings in the Architectural Works Copyright Protection Act of 1990. 

Murals and Moral Rights

Authors also enjoy certain special statutory rights – for instance, even after assignment of whole or part of the copyright they retain ‘moral rights' that include the right to claim authorship and to restrain or claim any damages against any distortion, mutilation, modification or other act in relation to the assigned work if such act is prejudicial to the author's honour or reputation [Section 57 of the Act].

In the context of murals and moral rights, in India, the judgement of the High Court of Delhi in Amar Nath Sehgal vs. Union of India and Anr[2005 (30) PTC 253 (Del)] has been seminal. Amarnath Sehgal, a well-known sculptor, was commissioned by the government to prepare a bronze mural for the Vigyan Bhavan – a prominent convention hall in Delhi. The mural went on display in 1962 but was taken down in 1979 on account of renovations at Vigyan Bhavan. In the process, it was slightly damaged due to mishandling and negligence. Amarnath sued the government claiming his moral rights had been violated. The government argued that it had purchased the mural for a due consideration and, as owner of the work, had the power to utilise it as it deemed fit, including its removal from public display. However, the court emphasised that the mutilation and part destruction of the mural was prejudicial to the reputation of the author itself, regardless of the owner. Terming moral rights as the ‘soul of the author's works', the court awarded Amarnath a compensation of INR 5,00,000 (USD 6250). Further, the remains of the mural were ordered to be delivered to him for the purpose of restoration and further sale.

In similar vein, in 2021, some murals in Mumbai and Delhi were painted over with murals of famous soccer playerLionel Messi as part of a campaign launched by the India office of beer brand Budweiser. The alcohol giant was called out on social media for painting over murals by existing artists to create ‘billboards' and for ‘hijacking the street art scene in India' for commercial gain. The backlash that followed made Budweiser take down the Messi art and restore the previous artworks. In public statements made after the event, one of the co-founders of the St+art India Foundation (a not-for-profit organization that works on art projects in public spaces in India) was quoted as saying, “We had no problem with the painting over of existing work. It happens all the time. Take the Bowery Mural Wall in New York, for instance. It gets painted over every few months and people look forward to seeing new ideas... What upset us was to see a mural that has no cultural or local connect and [the fact] that a similar mural was replicated in Mumbai – that's not an artwork.”

Sentiment and culture thus appear to be strong undercurrents in the legal landscape governing murals. Moral rights of artists, which are often ignored or perhaps underplayed, can prove to be lucrative and an important tool in shaping the contours of legal protection afforded to murals.

Practically Speaking

It is not uncommon for artists to allege copyright infringement if their murals painted on public places feature in third party advertisements. They typically allege substantial reproduction of their work without their consent. On the contrary, advertisers contend the use is incidental to their overall advertising video/campaign particularly as the murals are located in public places. In the Indian context, as explained above, if the use of a mural is incidental or if the mural is situated in a public place, such use would qualify as ‘fair use'. On balance, it would be fair to say that the unique facts of a case would be relevant in coming to a determination of copyright infringement or a lack of it.

From a commercial standpoint, the main bone of contention appears to be the illegitimate use of an artist's work as part of a backdrop for films, creatives, advertisements etc. without giving credit or royalty. Interestingly, growing consciousness amongst the general public about artists' rights have also led organisations to face social media backlash for coming on too strongly on small artists or misappropriating their works without consent. In such cases, on one hand artists can be disincentivised from creating murals in public spaces. On the other end, onerous burdens may arise for advertising companies which run contrary to the statutory exceptions of fair use. In the specific context of murals, due regard is to be paid to the strong cultural and local value murals hold for any given area. Commissioning murals in public spaces is often a way of architecturally renovating historic places with the object to add relevance and vibrancy to them.

Broadly put, the level of copyright protection afforded to artworks like murals would ultimately depend upon where a mural is situated and the nature, manner and medium of reproduction. Use of murals today can range from use in a selfie by a social media influencer to use in a large scale brand campaign by a well-known brand. It will be interesting to see how commercial interests - new age marketing in particular - and the creative spirit expressed in murals intersects in the days ahead.

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.