1. Introduction
Leaving no trace, radical self-expression, gifting. These are only three of the ten principles which made famous the Burning Man Festival all over the world. So, if you are also planning to join the festival next year or you are just so geek as I am about intellectual property protection you’d better put your eyeglasses on and enjoy the read.
First things first, what the Burning Man even is? Started in 1986 as a summer solstice celebration in which a wooden effigy called “The Man” was burned on Baker Beach, San Francisco, the Burning Man evolved into an annual global movement taking place in Nevada’s Black Rock Desert, which is now worldwide famous for its electronic music events as well as for the numerous artistic performance and artworks installed on the playa.
From a legal standpoint, the Burning Man symbol (logo), “Burning Man,” “Burning Man Project,” “Black Rock City,” “Decompression,” “Precompression,” “Burnal Equinox” and “Flambé Lounge” all enjoy protection as registered trademarks. On the other hand, the design of the Burning Man and Man base, the map and layout of Black Rock City, the design of the City’s lampposts and the Ten Principles are protected copyrights. Notably, the Ten Principles act as a guide both for the attendees as well as for the regulation of any legal issues.
For instance, as stated on the Burning Man website, based on the Decommodification principle, trademarks, copyrights and images from Burning Man cannot be used for any commercial or promotional purpose whatsoever without prior written permission from Burning Man. Also, based on the Radical Self Expression principle (i.e. Burning Man’s own version of the “freedom of speech” principle), individuals shall be allowed to express themselves to the fullest extent, and this is particularly so when it comes to art installations.
In this context, one should therefore consider the recent decision of the Burning Man organisers not to approve a sculpture of a sliced watermelon titled “From the River to the Sea” [1]. Interestingly, as noted by the Burning Man Spokesperson, the artwork was submitted using an anonymous profile, which violates the terms of the event’s art placement submission process. Additionally, the listing’s content contained language understood by some to be hate speech. While this decision is in line with Burning Man policies [2], expressly stating that works cannot be submitted by anonymous entities, and also banning the use of violent, hateful, or incendiary language in association with artworks, this is a good opportunity for us to review the relationship between hate speech, anonymous authors and copyright when it comes to the field of art.
2. The US framework
Notably, there is no legal definition of “hate speech” under U.S. law: the US First Amendment aims at protecting freedom of expression and it does not generally permit viewpoint- or content-based regulation of speech. Accordingly, hate speech is generally protected by the First Amendment and, in principle, it cannot lawfully be censored. In practice, Courts tend to extend this protection on the grounds that the First Amendment requires the government to strictly protect robust debate on matters of public interest even when such debate devolves into offensive, or hateful speech [3]. However, some speech that might otherwise be protected as a point of view can be prohibited if a court determines that it is likely to incite violence or consists of specific threats of violence against a person or group.
In this respect, one could ask whether the allegedly unlawful nature of the artwork might have an impact on the legal protection afforded. Indeed, this may actually be the case in the US where, in line with the “unclean hands” doctrine, a court will not lend its aid if a claimant’s cause of action is based on an unlawful act. On this very ground, protection to street art has been denied if the artist had not previously obtained an authorisation from the owner of the building (H&M v. Jason Williams A/K/A Revok [4]). On the same basis, protection could be denied if the artwork at stake is regarded as likely to incite violence.
As for the anonymous nature of the work, in line with US laws, this circumstance does not impact on the possibility for the work to be protected. Yet, in such case, the term of protection is different. Indeed, as a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. Yet, when it comes to anonymous works, in line with Section 302 [5] of the US Copyright Act, “copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first”.
3. And how about the EU framework?
-
Hate speech and related legislation
According to the Committee of Ministers, hate speech consists in all types of expression that incite, promote, spread or justify violence, hatred or discrimination against a person or group of persons, or that denigrates them, by reason of their real or attributed personal characteristics or status such as “race”, colour, language, religion, nationality, national or ethnic origin, age, disability, sex, gender identity and sexual orientation [6].
In principle, hate motivated crime and speech are illegal under EU laws (see “2008 Framework Decision on combating certain forms of expressions of racism and xenophobia” [7]). In particular, legislation on hate speech reported significant developments in December 2020, in view of the publication of the European Democracy Action Plan (EDAP) [8] and the Digital Service Act (DSA) [9].
- As for the first, the EDAP aims at extending as much as possible the criminalisation of hate-related conducts at the EU level, with a specific focus on the digital environment. Indeed, the underlying rationale is that online forms of hate speech deeply impact on the possibility for minorities to express themselves freely. To this end, the EU Commission recommends two main actions: (i) on the one hand, the implementation of the 2016 Code of Conduct (ii) on the other hand the amendment of Article 83.1 TFEU. Indeed, as things now stand EU law criminalises hate speech and hate crime, but only if they relate to a limited set of characteristics, such as race and ethnicity. Thus, in November 2023 [10], a Commission communication called on the Council to move quickly to adopt a decision to include hate speech and hate crime among the criminal offences listed in Article 83(1) TFEU, so as to allow the Commission to propose legislation in this area. Parliament echoed this message in a January 2024 resolution, in the wake of the re-escalation of the Israel-Palestine conflict.
- As for the DSA, which was approved on 19 October 2022 and is in force from 17 February 2024, this Act aims at making online service providers responsible for the contents available on their platforms. To this end, the DSA sets out a range of additional obligations for the providers, when it comes to illegal contents. In particular, with specific reference to hate speech, all the hosting providers shall put in place adequate “notice and action” strategies. Notably, once the notice has been given, it is assumed that the provider is aware of the potentially infringing content; accordingly, the limited responsibility regime does not apply any longer to the provider. Furthermore, obligations are even stronger when it comes to very large online platforms. Indeed, the potential risk of a similar approach is that, in case of doubts, the provider will simply prefer to remove the potentially infringing content so as to avoid any sanctions, with a potentially negative impact on the users’ freedom of speech. In order to somehow mitigate this risk, the Commission introduced specific measures aimed at ensuring the transparency of the overall process. Such measures include (i) the providers’ obligation of publishing at least once a year of a report highlighting all the actions undertaken by the online service providers, (ii) the publication of the platforms’ terms and conditions and (iii) the users’ right to appeal the decisions taken from the provider (so called “moderation decisions”).
This being said, from a legal perspective it should also be noted that, differently from the US, no principle comparable to the unclean hand doctrine exists in the EU. Accordingly, protection is granted regardless of the lawful nature of the work. This means that albeit the walls of a building were painted without a legitimate authorization and/or an art installation is deemed hate speech, copyright protection will still subsist in the “author own intellectual creation” [11].
- Hate speech and freedom of expression
According to Article 10.1 of the European Convention of Human Rights (“ECHR”), “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”. In other words, Article 10(1) ECHR provides freedom of expression with broad protection, and it extends it to the protection of commercial expression, artistic expression and political expression.
In practice, there are two main aspects to be considered. On the one hand, it should be noted that recently the right to freedom of artistic expression has become of utmost importance as its relevance was recognised, inter alia, by the Council of Europe in its Manifesto on the Freedom of Expression of Culture and the Arts in the Digital. In line with such document, artistic freedom shall be safeguarded in Europe, insofar as it represents a common basis for understanding the core value of democracy.
On the other hand, in line with the “Council of Europe report on the freedom of artistic expression” [12], since the topics addressed by artworks can be contentious, it may be difficult to judge where lines can or should be drawn. Accordingly, Article 10.2 ECHR lists exceptions to freedom of expression, referring to: “duties and responsibilities … [that]may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
It follows that the relationship between artistic freedom and hate speech is not a straightforward one, as it shall be shaped on a case by case basis, depending on the actual circumstances and the interests involved. Notably, in an historic case involving a poem the European Court of Human Rights (the “Court”) concluded that, although the applicant’s poems had a political dimension (and could have been seen as a direct call to violence), they were not meant to address a large audience and could not be presumed to incite outrage; thus, they constituted protectable free speech (Karataş v. Turkey [13]). Thus, interestingly, in such case the artistic nature of the work and its (allegedly) limited reach played in favour of the defendant.
By contrast, the outcome was totally different in a more recent decision. Indeed, in this case, the French comedian M’Bala M’Bala [14] had been convicted for having invited to his show an academic who had denied the existence of gas chambers in concentration camps and for having given to him a prize brought by an actor wearing a Jewish deportees’ garment. In April 2013, M’Bala M’Bala filed an application before the Court, arguing the violation of his right to freedom of expression. However, the Court ruled out the application of Article 10 ECHR concluding that the show went beyond a performance for entertainment, as it rather amounted to a demonstration of hatred and anti-Semitism and support for Holocaust denial.
- The protection of anonymous works
When it comes to the legal protection of anonymous works, it should be noted that, in line with EU laws, while these works enjoy copyright protection, provided that the relevant requirements are met, the protection accorded is much shorter, given that the 70 years’ term starts running from the date on which the work was lawfully made available to the public [15].
In this respect, a good reference is the so called “Banksy case”, where the EUIPO Opposition Division and Board of Appeal considered the question of whether copyright protection can be enforced by an anonymous author [16] 25/10/2022, R 1246/2021-5, DEVICE OF A BANKSY’S MONKEY (fig.)). Notably, in its decision the Opposition Division after affirming that the EUTM proprietor had undoubtfully copyrights on the artwork of which the contested mark consisted, found that the protection provided by copyright law would require the EUTM proprietor to abandon its anonymity. It then concluded on this ground that the EUTM proprietor had chosen to rely on trademark protection for the sole purpose of not disclosing its identity and had no intention to use its trademark. However, this conclusion was then reverted by the Board of Appeal, finding that “the assumption that the need of staying anonymous was the reason to opt out from copyright protection and go for trade mark protection, as submitted by the Cancellation applicant, even if it would be correct, cannot justify a finding that the EUTM proprietor had no intention to use the contested mark”.
4. Conclusion
To conclude, drawing the line between freedom of expression and hate speech is not an easy task.
As for now some indications come from the practice of the United Nations, supporting freedom of expression as the norm, with the consequence that any restrictions should be exceptional. On this point, one many also refer to the UN Rabat Plan of Action, drawing a line between freedom of expression (which shall be supported) and “incitement” to discrimination, hostility and violence (which is prohibited under criminal laws). In particular, the Rabat Plan of Action recommends the adoption of a high threshold for defining restrictions on freedom of expression, incitement to hatred, and for the application of article 20 of the International Covenant on Civil and Political Rights (“ICCPR”). Under this approach, the following factors shall be taken into account: (i) the social and political context, (ii) status of the speaker, (iii) intent to incite the audience against a target group, (iv) content and form of the speech, (v) extent of its dissemination and (vi) likelihood of harm, including imminence.
Indeed, the mentioned Plan is relevant insofar as it aims at establishing clear specific rules on how to proceed in the case a contrast between free speech and other fundamental rights takes place. Yet, the assessment remains a complex one and this is particularly so when it comes to the field of art, where freedom of expression plays a primary role and controversial topics are usually addressed. In this respect, further developments in the legislative framework as well as in the practice of the courts will certainly provide some additional relevant guidance.
***
[1] See “Burning Man Removes Pro-Palestine Watermelon Artwork From Website”, Hyperallergic, 13 May 2024-10-02, available at https://hyperallergic.com/914822/burning-man-removes-pro-palestine-watermelon-artwork-from-website/
[2] “Art Installation Guidelines”, Burning Man Project, available at https://burningman.org/event/participate/art-performance/playa-art/art-installation-guidelines/
[3] See Supreme Court’s Decision of 2 March 2011 in SNYDER v. PHELPS available at
https://www.law.cornell.edu/supct/html/09-751.ZS.html
[4] See “Unlawful street art used in a promotional campaign: H&M withdraws its complaint”, the IPKat, 18 March 2018 available at
https://ipkitten.blogspot.com/2018/03/unlawful-street-art-used-in-promotional.html
[5] US Copyright Act, Section 302, Duration of Copyright Protection, available at https://www.law.cornell.edu/uscode/text/17/302#:~:text=Go!-,17%20U.S.%20Code%20§%20302%20%2D%20Duration%20of%20copyright%3A%20Works%20created,or%20after%20January%201%2C%201978&text=Copyright%20in%20a%20work%20created,years%20after%20the%20au
[6] Recommendation CM/Rec(2022)16 of the Committee of Ministers to member States
on combating hate speech.
[7] Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, European Council, 28 November 2008, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:l33178
[8] European Democracy Action Plan, European Commission, 3 December 2020, available at https://www.europarl.europa.eu/legislative-train/theme-a-new-push-for-european-democracy/file-european-democracy-action-plan
[9] Digital Service Act, 5 July 2022, available at https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act_it
[10] See “Recognise hate speech and hate crimes as EU-wide offenses to curb the rise of hatred”, Renew Europe, 17 January 2024, https://www.reneweuropegroup.eu/news/2024-01-17/recognise-hate-speech-and-hate-crimes-as-eu-wide-offenses-to-curb-the-rise-of-hatred
[11] See decision of the CJEU C 5/08 of 16 July 2009, “Infopaq”, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62008CJ0005
[12] Council of Europe report on the freedom of artistic expression (March 2023) available at https://rm.coe.int/free-to-create-council-of-europe-report-on-the-freedom-of-artistic-exp/1680aa2dc0
[13] Karatas v Turkey, available at https://globalfreedomofexpression.columbia.edu/cases/karatas-v-turkey/
[14] Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version) available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0116
[15] Decision of the EUIPO Board of Appeal in case R 1246/2021-5, DEVICE OF A BANKSY’S MONKEY (fig.), 25 October 2022 available at
[16] M’Bala M’BAla v France available at https://globalfreedomofexpression.columbia.edu/cases/mbala-v-france-no-2523913/
