Street fight for artists
Street artist Xoe Hall is fighting a campaign against bad exposure – companies making money ripping off street art, writes Nikki Macdonald.
Here we go again, thought street artist Xoe Hall. She was gearing up for a great new year with friends when a mate texted a photo from a Whitcoulls shop.
It showed a Wellington street art calendar, with Hall’s ‘‘three Bowies’’ mural on the cover.
‘‘I was like, ‘Oh God, there goes my mural getting used again’. People are always like, ‘It will be great exposure for you’. Exposure doesn’t pay the bills, honey.’’
It had been a common conversation among street artists for years – their work getting ripped off without permission or pay. If it wasn’t calendars, it was postcards, or T-shirts, or advertising campaigns. They always thought there was nothing they could do. But they were wrong.
Hall complained to Whitcoulls, which directed her to its Australian supplier. But Hall figured her time was better invested trying to educate street artists about their rights.
‘‘By the time I chase it up, it will be gone and there will be something else that comes out, whether it’s my art or someone else’s. So I may as well spend that energy trying to stop it happening at all.’’
Her new website, Bad Exposure, produced with intellectual property lawyer Tom Huthwaite, is part of a global fight to give street art the same copyright protections as a painting in a gilt frame. Around the world, graffiti and street artists are taking big brands to task and to court for using their work without consent (see Case notes).
Street art is big. In Christchurch, it became a symbol of hope, brightening the stark grey of post-quake concrete skeletons. In Wellington, it’s brought colour and character to formerly dingy laneways. Hall’s three Bowies even made a list of the capital’s top 10 most Instagrammable spots. In Dunedin they’re so proud of their wall work they used it in city promotion ads.
And with the artform’s transformation from the dark arts of nefarious night creatures, into the edgy but acceptable, comes the temptation to turn it into big business.
Hall’s murals have appeared in promotions for cheap flights to Wellington. That Dunedin promotional ad was done without the artist’s consent. And that street art calendar that sent Hall into a fury wasn’t a one-off – they date back to at least 2016 and have featured murals nationwide.
It was the size of the canvas that attracted Hall to the world of spray cans and cherry pickers. But it’s the public joy that street art brings that has kept her in it.
‘‘It becomes for the people, not just for yourself. It can brighten someone’s day when they walk past. It can start conversations, maybe spark inspiration. I love people and tourists posing and taking photos and sharing it – that’s awesome.’’
What she doesn’t love is people using her work without asking, to make money.
That’s also the constant gripe of Dunedin artist and street art advocate Bruce Mahalski, who has been enlivening walls since 2005. He’s had a mural he painted in England used in a car ad, he’s had artworks stolen and reproduced on T-shirts. And, as an advocate, he has fought for the rights of others. He complained about the use of a mural by visiting artists Phlegm and PixelPancho in a magazine ad promoting Dunedin and on airport billboards.
‘‘A lot of people think, because street art is in the public domain, it’s just up for grabs. Artists accept people can photograph their art and that’s fine. What they don’t want is people using it for personal, commercial gain, without asking.’’
Kerry Palmer, operations manager for Bishopp airport advertising, says the billboard image Mahalski complained about was a temporary ‘‘filler’’. He apologised, replaced the photo and changed the firm’s strategy for finding filler images.
Huthwaite says street art is clearly an ‘‘artistic work’’ under the Copyright Act, so it can’t be reproduced without the artist’s permission. Artists also have the moral right not to have their reputations wrecked by ‘‘derogatory treatment’’ of their work. But the fact street art is
public art does complicate matters.
While New Zealand’s copyright law exempts ‘‘sculptures, models for buildings, or works of artistic craftsmanship’’ on permanent public display, that does not appear to apply to street art. But photographers should be able to take and sell photos of a streetscape, without chasing permission to show a distant mural or cafe poster.
Huthwaite says it’s not clear at what point a streetscape photo becomes an infringing photo of a mural.
‘‘You have to ask the question, ‘Why is that shot taken?’ If it is because of the mural or street art, it seems to me pretty obvious what the answer is.’’
When Detroit street artists demanded Mercedes stop using their murals as an advertising backdrop, Mercedes argued the artworks were incidental, because they made up no more than a quarter of the image, were viewed from the side and were slightly blurred.
Passed in 1994, the Copyright Act also fails to recognise that social media means everyone is now a publisher. While an Instagram post by a hip art magazine could help broaden an artist’s audience, when does that cross over into commercial use? Huthwaite hopes those kinds of questions will be considered in the Copyright Act review.
The Wellington sharkfinning protest mural painted by duo BMD featured on the cover of a
2018 street art calender, and is available in numerous photo libraries, including a Spanish site offering commercial use for
US$249. One half of the duo, who asked to be known only as Dside, says despite the abuses, he would oppose any restriction on the public’s ability to photograph his work.
‘‘I don’t see those walls as mine. I’m not trying to get anything from them, I’m giving them to the public, the public can do whatever they want with them.
‘‘It’s just when people try to monetise them for their own personal benefit, it’s just a bit disappointing. It’s not like they’re things I’ve made money from – they’re things that I have spent money on to give to the public.’’
One of Dside’s pet peeves is poster companies both taking up all the potential public art space, and pasting posters over his art because they know it draws viewers.
Hall’s calendar example shows how businesses pass the buck for copyright responsibility. Whitcoulls did not respond to Stuff’s request for comment. Distributor Edition Habit Press said: ‘‘Since we were only the distributors of this calendar, we had nothing to do with any of the copyright issues.’’ The email contact provided for Red Square Publishing bounced back.
Huthwaite questions the ‘‘not our problem’’ defence. ‘‘No serious retail store would sell counterfeit goods and then say, oh, sorry that wasn’t our fault.’’
In the case of photo libraries such as Getty, Shutterstock and Alamy, they bat off responsibility by restricting potentially problematic images to no commercial use. Alamy’s standard response to copyright complaints about photographs of artworks reads: ‘‘If the image is taken from a public place, has been shot in context and captioned as such, then we’ll be taking no further action and the image will be fine to use for editorial use.’’ Getty says no ‘‘property release’’ is needed for editorial use.
Hall and Huthwaite hope their website will improve copyright awareness across the board. ‘‘Copyright infringement can happen all the way down the chain,’’ Huthwaite says.
‘‘It really dawned on us, that it wasn’t just whoever was manufacturing the thing or ripping off the thing, it was whoever was distributing it, whoever was retailing it, whoever was buying it. Everyone in that chain needed to know what was happening.’’