Copyright is a bundle of exclusive rights falling under the umbrella of Intellectual Property (IP) law. The purpose of copyright is to protect creative effort carried out by a natural person (author) expressed in a tangible form and which amounts to one of the categories of "work" as defined by the statute, some of which also require the work to be "original". The aim of this article is to draw attention to the issue of copyrightability of works that have been created illegally or that are on the verge of illegality. As this topic and the related issues are quite extensive, this article offers only a brief introduction to the subject and is by no means exhaustive.
This article argues that copyright should be available to all works fulfilling the legal requirements, regardless of their (potentially illegal) content or way of creation (i.e. it should be content-neutral) since the purpose of copyright should be protection of free expression, promotion of arts and consequently the progress of society. This approach is justified, inter alia, by the TRIPS Agreement and the Berne Convention, which set out that copyright protection is established upon creation of the work with no need for any formalities (such as registration) thus excluding any room for scrutiny of the work and/or evaluation whether its content or creation process deserve copyright protection. Moreover, the Guide to the Berne Convention states that the work's value, merit or purpose is irrelevant to the enjoyment and exercise of copyright and emphasises the all-embracing copyright protection of all works, regardless of the manner or form of their expression.
By granting protection to the work automatically, without any formalities, regardless of its content or process of creation, copyright can further its purpose of protecting creative expression and in parallel can underpin freedom of speech (or expression) as set out in Article 10 of the ECHR, especially "without interference by public authority" and in Article 19 of the Universal Declaration of Human Rights (UDHR). Seen from the perspective of freedom of speech articles and Article 27(2) of the UDHR, copyright has even been considered as a "human right equal to freedom of expression". It can thus be said that the significance of copyright as a tool to promote, or even as a right amounting to, freedom of expression through a copyrighted work, has been generally accepted, especially in common law jurisdictions.
Currently, the main topics of discussions involving works with illegal element have been copyrightability of graffiti and of pornography. This article deals with the issue of graffiti, while the copyrightability of pornography will be discussed in another article.
Graffiti (various markings, especially letters and words, on public surfaces) are in large part created illegally - namely without permission of the owner of the property on which the work is placed ("public surface"). There have been recent cases where a corporation (e.g. a fashion retailer) used graffiti piece for its clothing collection without the author's permission. In such cases content-neutral copyright can serve as a useful tool in protecting graffiti artists from unauthorized use (or unlawful misappropriation) of their works and their subsequent commercial exploitation by corporations.
Such unsolicited commercial exploitation could be considered as unjust enrichment where the corporation has enriched itself at the expense of the artist to the extent that any proceeds from the sale of the work (depicted on the clothing collection) would go to the corporation which has no legal title over the work, rather than to the artist who in fact created the work and therefore enjoys all the copyright.
English (and American) courts may generally accept the equitable defence of unclean hands which, when applied to the issue at hand, can be raised by the defendant - the corporation to argue that the claimant - the street artist whose work has been misappropriated, cannot claim damages on the grounds that she had acted illegally when creating the work (such as trespassing or causing property damage) and thus it would be unequitable to assist the claimant who does not come to court with clean hands. However, it should be noted that the illegal act (trespass, property damage) in this case is not directly linked to the subject-matter of the dispute (misappropriation of the work). In other words, the defendant has not been the victim of the illegal act (unlike the public surface owner). Moreover, the artist would first have to be found guilty of the illegal act by a competent authority (most likely a criminal court) in order to apply this doctrine.
Finally, the defence of unclean hands in a copyright infringement case has been rejected by the US court decision in Mitchell Brothers where the court also held that "all creative works (in a copyrightable format) [are] to be accorded copyright protection regardless of [their] subject matter or content."
As it has been argued above, copyright should provide content-neutral protection to all works that meet the protection requirements, even if the work was created illegally or is on the verge of illegality. However, it must be recognised that public surface owners likewise have their rights and interests which cannot be denied. Their right to property is equally protected by international human rights treaties. It is therefore necessary to balance the rights and interests of the parties involved which are the artists themselves, the surface owners and, where appropriate, also the commercial users seeking to exploit the work. In this context, there have been proposals for new approaches to copyright which seek to balance the rights of the stakeholders. While none of these proposals is flawless, they should be praised for at least attempting to address this unresolved issue.
The courts in the United Kingdom have not directly dealt with copyrightability of illegally created graffiti yet; thus, there is no case law explicitly ruling on this issue. The CDPA is silent on whether copyright is granted (or not) to illegally created works. Although, it states that copyright enforcement may be restricted on public interest ground. Similar approach has been taken by the Czech Copyright Act which states that if there is a public interest in exclusion from copyright protection of certain works, such works are excluded from copyright protection. Therefore, neither in the UK, the USA nor in the Czech Republic, the issue of copyrightability of illegally created graffiti has been conclusively settled yet. It should however be reminded that where copyright protection is not granted, the work in question may be freely distributed. This raises the question of what is more in the public interest: a free, unrestricted circulation of work on the verge of illegality (when not granting copyright), or the inclusion of such work within the framework of legal rules which, in addition to rights, also imposes restrictions (when granting copyright).
The most relevant English case law to date is Creative Foundation v Dreamland Leisure Ltd  EWHC 2556 (Ch) where the court considered whether a section of a wall containing a mural created by Banksy and subsequently cut out by the tenant belonged to the landlord (the public surface owner). The High Court held that the segment of the wall containing Banksy's work was a chattel belonging to the landlord and, what is particularly relevant for our discussion, indicated obiter that copyright in the mural belongs prima facie to Banksy. It is also noteworthy that the court did not concern itself with the (il)legality of the work. This can therefore be seen as an indication that the English courts may be open to copyright protection of illegal graffiti.
It should be emphasized that this article does not endorse not encourage illegal activities per se, but it seeks to recognise the deeper values that are hidden behind the issues discussed here. In other words, it is not being suggested that people should go about to trespass or vandalise property with the argument that they have created artworks and are thus protected by copyright. However, the aim here is to accentuate the underlying fundamental rights recognised by international treaties, such as freedom of expression, which should be available to all members of society, regardless of their background or their ability to express themselves. It is the author's view that granting copyright protection to any work which meets the legal requirements of copyrightability serves the wider purpose of promoting freedom of expression and that restricting copyright of works on the verge of illegality does not protect the public interest since it allows their unrestricted circulation.
By Aneta Klukova, Lawyer, PRK Partners