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Street Art and the Law in India

Rangoli during Palkhi (Pune, 2015)
Street and public art has always been common in India. In fact, it's so common that it is often unremarked upon, with rangoli and other forms of indigenous art being so ingrained in our culture that, even when they appear on the streets, they barely register as being 'art' at all, much less as 'artistic works' which are protectable by copyright law.

That said, there is a growing enthusiasm to engage with indigenous arts; folk arts are often celebrated, sometimes with a nudge from the government. While street artists in India have not developed a distinctively homogenous Indian style, they draw on both domestic and foreign techniques ranging from the use of spray paint, still all but inaccessible except to the richest, on walls to the use of petals and powders for rangoli on the ground.

The substance of urban street art and graffiti seems to be evolving at a noticeably quick pace, too, perhaps in a reflection of developing priorities. The 'Two-Child Family - Happy Family' banners, so common in earlier decades, now often relinquish some of the space they have hitherto occupied to 'Green City - Clean City' reminders.

The art of the pro-independence era of the Raj reminding one of the appearance of a non-colonial land, as the famous Haripura posters once did (and NGMA collectibles featuring them continue to do), now shares space with art about that same era, sometimes drawing a direct line from pre-colonial rulers like Shivaji Maharaj, the warrior-king who challenged the Mughal Empire at the height of its power, to stalwarts of the freedom movement like Lokmanya Tilak who had declared of self-rule, in no uncertain terms: "Swaraj is my birth right and I shall have it," effectively marking the beginning of the end of the British Empire in India.

This wave of nationalist art, it could be argued, is not so much anti-colonial as it is a celebration of the struggle to assert national autonomy and agency. It not only often features Gandhi, whose devotion to non-violence is well-known, but also recognises that not all of the interaction between the rulers and ruled was non-violent, and that protests against the British could, in fact, be remarkably violent.

A work on Ganeshkhind Road in Pune appears to feature the 1897 assassination of the plague commissioner, W C Rand, by the Chapekar brothers. Although little remains of the road as it once was  a tree-lined avenue till as recently as the early 1990s  the event has not been forgotten.

Protest art and graffiti lives on. Issues like the non/desirability of slum demolitions (depending on one's point of view) continue to arise with unsurprising regularity not just through graffiti and street art but also in other forms of creative work such as books; Mathangi Subramanian’s novel A People’s History of Heaven set in a fictional Bengaluru slum, which happens to contain a sub-plot featuring a girl and graffiti, is perhaps one of the most recent books to deal with the subject. No major urban centre has remained unaffected by the issue of demolitions: Bombay saw its fair share of upheaval around the turn of the century, and Delhi saw concerns being raised about proposals to rehabilitate artists who lived in Kathputli colony, a neighbourhood where those who made a living off traditional forms of entertainment once thrived.

Current events too such as the #MeToo movement against sexual harassment have led to content creation amongst which are some pithy and rather pointed slogans: Due process not Dude process!, to take just one example.

The range of technologies used by creators has expanded. It is not unheard of to have street art be temporarily projected on to a wall rather than to have it be painted on to one. 'Projection bombing', as the tactic is called especially when it's employed by campaigners, seems to lie quite firmly beyond the realm of established jurisprudence with regard to its commission although its substance is susceptible to being assailed by India's many content laws.

It would appear that the only reason holograms are not really part of the repertoire of street art is because they cannot be inexpensively projected at large scales.

Projection as art does, however, raise interesting questions regarding what determines the constitution of a 'public space'. Is it ownership of a physical space or online platform? Is it a question of who has access to the supposed public space? Does it boil down to the function of the public space? This is important in the context of the law not just because the contours of copyright vary depending on where a work is placed but also because, proprietary rights aside, the definition of a public space ultimately ties in with free speech concerns in terms of the rights which members of the public have in relation to a 'public space'.

At the moment, we do not completely understand how public rights in the context of street art and graffiti interact with private ownership (particularly when new technologies are employed), and to what extent those rights can be rights be subverted by contract.

Much that seems new does, however, have a flavour of the old. Bollywood may no longer create posters as it did in the heyday of Balkrishna Arts, whose work has also found its way into the NGMA, and Bollywood Art Project may have consciously celebrated the film world of yesteryear in our own time but, even so, contemporary films, from both Bollywood and Hollywood, have not been entirely left out in the cold. They find themselves referenced in murals: they are still advertised with eye-catching images, sometimes (it has to be said) painted over other works.

Not all street art raises hackles or is intended to. Many works 'merely' make an unobtrusive statement or act as reminders of what we have achieved. A work in Pune featuring Savitribai Phule, after whom the city's university has been named, uses a series of images to tell a tale which begins with Mahatma Phule teaching his wife, Savitribai, goes on to display her pioneering efforts to teach girls in the city, and finally ends by portraying women as professionals.

Street artists sometimes work in teams or crews, (as they seem to have done with the work depicting Savitribai Phule), or else work individually. They rarely create works purely for the kicks that come from 'vandalism': street art in India is usually purpose-driven whether in consequence of artistic inclination, socio-religious demand, or the desire to communicate a specific and easily-intelligible message. It is often is commissioned by a ministry or municipal body, and mentions the names of the commissioners and the creators possibly through conventional tags. Street art festivals are occasionally conducted although not all creators are or are willing to be associated with them.

There are a variety of artistic styles employed by people across the social spectrum although, when street art is spoken of, the focus too often tends to be on works created by well-heeled urban artists. Those who create rangoli by the roadside during pilgrimages, the women who weave elaborate garlands, the many artisans involved in erecting festival pandals… they're all invariably anonymous in the public eye. Caste, class, and gender, as always, make their presence felt. And scarcely a thought is given to protecting pandals, often enough artistic architectural works in their own right.

Naturally, unacknowledged artists find it even more difficult than acknowledged ones to benefit from what protection the law has to offer them and their works although, in that regard, there is almost no creator who has it easy. In an essay in 'The Cambridge Handbook of Copyright in Street Art and Graffiti' edited by Enrico Bonadio, I've argued that while Indian copyright law applies to street art and graffiti in theory, it doesn't necessarily provide adequate protection in real life. And, even when it comes to theory, we don't know what the contours of the law are because the law has not been sufficiently tested through litigation.

Attempting to draw parallels to the West isn't the best approach to take: in contrast to the West, Indian creations often (though not always!) conform to social expectations. And, if one were to separately examine the law, it would likely emerge that, effectively being a part of the country's colonial legacy, the 1957 Indian Copyright Act isn't especially well-suited to protecting indigenous arts unaligned to Western modes of distribution and practices of creation (which tend to privilege contemporary individual genius rather than communal creation passed down through the generations).

India has, in the past, virtually upended the colonial paradigm to better suit its own arts. For example, the definition of a musical work in copyright statute, effectively a carry over from the 1911 UK Act and the 1914 India Act, was amended in 1994 prior to which the law had privileged Western music by requiring musical works to be written down. The 1994 amendments redefined a ‘musical work’ as, in relevant part, one which is: ‘a work consisting of music and includes any graphical notation of such work’. The amended law, contained in the 1957 Copyright Act, is suited to protecting Indian classical music which does not necessarily have ‘graphical notation’ at all, and has performers extemporise. In fact, Indian law now recognizes the possibility of musical works having graphical notation – invariably the norm in the case of Western classical music – almost as an afterthought.

In the case of art, the requirements for copyrightability, especially the originality requirement, place folk arts at a significant disadvantage although how the law should be structured to avoid turning the intellectual commons into a fenced-off proprietary field is an open question.

We would do well not to take the protection of the law for granted when it comes to street art and graffiti in India. After all, we still have a long way to go when it comes to protecting art and artists not just in terms of addressing enforcement issues but also in terms of decolonising the structure of Indian copyright law to better protect art in India.

(This post is by Nandita Saikia and was first published at IN Content Law. Some of its content has been previously published on Twitter, and it has benefited from numerous conversations with friends, acquaintances, and complete strangers, over the years.)