Delhi: Mexican artist Paola Delfín balanced herself on a crane inside Sassoon Docks in Mumbai to add the finishing touches to her 40ft mural on the walls of a dilapidated building.
A year later, the mural finds itself balancing a precarious legal question: who does it belong to?
Sassoon Docks was transformed into an open air art gallery in 2017, as part of a collaboration between the St+Art India Foundation, the Mumbai Port Authority, and Asian Paints. The project’s second edition in 2022 celebrated 150 years of the Port Authority. Artists from all over the world flew down to Mumbai to paint trees, walls, scaffolding, and buildings.
One of these paintings is Delfín’s stunning greyscale work, titled “Humanity”—a portrait of the dock’s working women.
In the age of Artificial Intelligence and memes, when the lines between creator and creation is increasingly getting blurred, a legal battle for intellectual property rights over street art has reached the Delhi High Court.
“This is one of the first few cases where we’re dealing with art which beautifies public spaces,” said lawyer Dhruv Anand, partner at Anand & Anand, one of India’s top Intellectual Property law firms which represented St+Art Foundation in the suit. “The whole concept behind St+Art Foundation was to democratise art for people who can’t afford to go to art galleries. Yes, it’s public art, but using it in a commercial manner without permission is an issue.”
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Art in the street
The case is straightforward: In February 2023, the Acko General Insurance Limited used Delfín’s mural in a hoarding as part of an ad campaign called “Welcome Change.” A back and forth ensued between Acko and St+Art, and Acko took down the hoarding.
And then, the issue reached the Delhi High Court.
In its order, the court ruled that Acko should take down all social media posts containing the mural. But the court didn’t give any opinion on the legal issues, withholding an assessment on whether Acko had the right to claim fair use of the mural.
St+Art’s “case is that they are involved in urban regeneration by incorporating artistic works to make urban cities and spaces more interesting and artistic,” reads the order. And this is the aim of all street art: to invite a different kind of interaction between people and a public space they might overlook.
Street art is a form of public art that has evolved over years. Earlier dismissed as graffiti or vandalism, it’s started becoming more commercial as urban regeneration projects have looked towards commissioning artists’ pieces to improve an area’s aesthetics. Artists like Banksy revolutionised the way street art is consumed, turning it into a political message or tourist attraction. Cities like New York, London, Paris, and Berlin have tours dedicated to street art.
Street art has found its place in India, too. The Lodhi Public Art District in Delhi is the best example of the kind of urban regeneration street art can create: by making public spaces more vibrant, this form of art allows people to interact with the space in a different way.
This art form is also highly collaborative, requiring the involvement of civic agencies. Municipal bodies in India have been commissioning artists and foundations to create public works, like in the case of Mumbai’s Sassoon Docks. Usually, design ideas for murals are approved only after establishing the originality of the artwork, which qualifies it as primarily the artist’s creative output, even if commissioned.
“The fact that the art is in an open space does put it in the public domain—however the actual creative effort that went into it and its ownership belongs to the artist,” said Yogesh Saini, artist and founder of Delhi Street Art, which has commissioned and created art across Delhi, Dehradun and Allahabad.
“Just because it’s in the public space doesn’t mean it’s free for commercial use, unless the copyright has been explicitly granted to the entity that commissioned the art. Even if the rights have been passed on to a specific entity or brand, it does not automatically make it available for all to use as they deem fit” Saini added.
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Street art’s intellectual property
Street art is no stranger to legal issues. Unlike installations and sculptures, there’s a more physical immovability to street art, which blends it into the background.
The problem arises when public art is used for commercial purposes. It’s a constant battle for artists and content creators, especially with the advent of Artificial Intelligence. Taking a photograph in front of a mural and posting on social media is one thing, but taking a photograph of the mural for commercial purposes without prior acknowledgement or permission is the real can of worms.
“The defence claims that a work of art permanently situated in a public space, (and) which is accessible to the public, shouldn’t be eligible for copyright protection,” said Anand. “But the provision for exemption doesn’t apply here, because it’s a temporary mural and because it wasn’t used in a fair manner. It was not created for a commercial enterprise to pick it up without compensating the author.”
India is also a signatory of the Berne Convention for the Protection of Literary and Artistic Works, an international treaty signed in 1886. The Berne Convention ensures reciprocity and equal protection for foreign works in India. As a result, any artist can file a copyright suit in India and the court will take it up—in this particular case, ‘Humanity’ is an Indian artwork by a Mexican artist.
The Delhi High Court has dipped its toes in copyright law over art multiple times before. A significant ruling in 2005 upheld artist and sculptor Amar Nath Sehgal’s moral rights over his bronze mural installed at Vigyan Bhawan, and penalised the Indian government for dismantling and damaging his artwork under the Indian Copyright Act. The government was also directed to return the mural to him.
Another instance involves the case of sculptor Jatin Das. His iconic sculpture, ‘Flight of Steel’, commissioned by the Steel Authority of India in Bhilai, was shipped to a zoo, where parts of the sculpture were found dumped and disfigured. Das sued for moral rights, and the court directed the authority to relocate the sculpture for Das to repair and restore it.
Mostly, though, such cases fly under the radar—not everyone takes legal action. Saini recalled an instance when a mural in Connaught Place, commissioned from Delhi Street Art by the Israeli Embassy to mark 30 years of its diplomatic relations with India, was used in an ad for shoes without permission. Nothing was done about it.
“There are two things at play here. One is when someone tries to copy an existing public art work and have someone recreate it to call it their own. That is pure and simple plagiarism. The other is when a brand is using an art work in the public domain to promote a product or service, without permission from the owner” said Saini. “In both these cases, the sanctity of the original creator’s idea and its execution still have to be respected and protected.”
A constant struggle
Street art is a constant struggle in India, where scratchy graffiti on public monuments and paan stains on sidewalk walls are ubiquitous.
“Yes, laws in India over these kinds of things are lax, which leads to regulatory issues,” said Saini. “This leads to some people treating public art with disdain and feel they have the liberty to misuse or abuse it any which way they want,” he added, referring to a recent mural his foundation created in Dehradun. Two days after it was painted, he received a photo of a paan stain smeared over the artwork.
But having art in a public space also eventually aims to reform civic sense when it comes to aesthetics. It creates a sense of collective community ownership over the artwork, especially if its value is defended by civic bodies.
In the case of Sassoon Docks, artistic director of St+art India Hanif Kureshi said that they want to “reclaim the streets” to create art for all. “Everyone should be able to enjoy art in their everyday life. Which is why many artists, in fact anyone who feels like expressing themselves through art, have joined us in painting walls and streets of Mumbai.”
The Art House, which stands at the entrance of the docks, is adding a new layer of heritage to the area’s hallowed history. But the art created for it was intended to remain there for public consumption and enjoyment — not to be reproduced as part of a commercial campaign.
“There is no doubt in the present case that the advertisement of the Defendant reproduced the mural,” the order reads. “There could not have been a presumption that the same was a public domain work that could be used in the manner as the Defendant has done. The same is not for a mere public messaging but for an advertisement—albeit, with a social cause. The use being for a commercial purpose by the Defendant, the question whether the same qualifies as fair dealing or fair use, would require to be examined.”
The Delhi High Court will next hear the case in February 2024. ThePrint has reached out to St+Art Foundation, and will update the copy with their response.
“The mural is a reminder of the importance of community and teamwork, of supporting each other,” said the artist, Paola Delfín, when the mural was unveiled. Perhaps the mural will become a symbol of something much larger, setting a legal precedent for its message on community and teamwork.
(Edited by Prashant)