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UNDERDOG,  YABLOKO AND BANKSY GRAFFITI. WHY BOTH AGENCIES ARE WRONG? KSENIA PROKONOVA AND MARINA KISLOSCHAEVA

Ксения Проконова_полурост 1 — копияLast week all social networks discussed the conflict of Yabloko ideas studio, and Underdog companies. The reason was a series of graffiti, which appeared on Kyiv walls during UPark festival. Images of a protesting man, a vulture and a mouse remind of the work of the unknown street artist Banksy, who presumably is a member of the Massive Attack music band.

As it turned out later, it was a deliberate case of guerrilla marketing. First, Underdog claimed the authorship right to graffiti, and then Yabloko ideas studio did the same. While the two companies argue about who is the author of the drawings, the Juscutum lawyers have  figured out the consequences of such pranks with copyright. MC Today’s editorial team publishes a column by Ksenia Prokonova and Marina Kisloschaeva, the Juscutum’s partner and the conflict management practice lawyer.

While PR-aces of Yabloko ideas studio and Underdog debate over the matter who is cooler, the issue of Banksy rights has been undeservedly gathering dust in a corner.

Underdog claimed that the image of a man throwing away a Facebook logo had been made by their artists. Then they gave it a second thought and decided to claim authorship right to all three drawings.

Yabloko ideas studio recognizes that the case with this graffiti is a part of PR campaign for their client. So they made two images disturbingly resembling famous works of the street artist. There are even rumours in the network that one of them is signed as Banksy’s. Let’s consider this situation as an example of examining the main points of copyright.

Who has violated the copyright?

A characteristic feature of a copyright is the fact that it protects the forms of expression (images in our case), but not the ideas, the form or an implementation method.

The idea of the drawings cannot be considered as a copyright violation unless it is a specific image. Therefore, in our opinion, Underdog is in a more advantageous position, because they just have taken the idea (to depict a struggle with the system on the wall).

Taking into account the objective factors (place of drawing, the Massive Attack’s performance), it turned out to be a real hype. But the drawings of Yabloko ideas studio are very reminiscent of the early Banksy works.

And the question arises: isn’t this just a copying of his works? Before talking about responsibility, it is necessary to determine the initiative on the graffiti author’s part, whose drawings were copied. Besides, the author will have to prove that he is the actual author and that the images look alike. The legal proceeding for proving that Banksy is Banksy will for sure attract media attention.

It turns out that the Underdog actions did not violate anyone’s rights, and Yabloko ideas studio are at a risk to face Banksy’s wrath.

Who is the author?

Copyright law stipulates presumption of authorship: an author is a person specified on the product. It turns out that the author of signed graffiti is Banksy, who did not paint it.

Thus, is it a fake, signed by a famous name? The author of graffiti has every reason to protect his rights and reputation.

And that would do, but Underdog placed their nameplates near graffiti, thereby calling themselves the authors of not only the first graffiti but the other two as well.

In this situation the rights of Yabloko ideas studio are violated, as it was them to paint the drawings at the gas station. And this is the grounds for litigation over the right to be called an author.

By the way, the Yabloko ideas studio has a proof, that is a video recording. However, they have to prove that there were their employees shot by the camera. This is the case when the lack of proper registration of employees may result in not only inspection by State Labour Service, but also in deprivation of rights.

Copyright belongs a priori to an individual but not a company. So, we should look for those who have painted it. Hardly Alexey Kuprienko (Underdog’s CEO) and Taras Efimenko rolled up their sleeves and made those drawings at the gas station. It is strange that the conflict doesn’t involve polygraph to confirm their words.

Two offices may quarrel to their full content until Banksy claims violation of his rights.

Ksenia Prokonova and Marina Kisloschaeva, the partner and the Juscutum’s conflict management practice lawyer.

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