What's the logic in discussing the legality of using a drone to deface a billboard? I mean, when Brooklyn-based street artist KATSU attaches a spray paint canister to a drone and then films the drone defacing a Calvin Klein billboard featuring Kendall Jenner (and then places the video on YouTube for the world to see), he’s purposely bucking the law. He’s certainly not concerned with city and state laws making graffiti a criminal act; he obviously didn’t obtain a Section 333 exemption from the FAA to fly the drone (nor would he have been granted one); he’s clearly unconcerned with the fact that the billboard is the physical and intellectual property of another; and he’s not very concerned with the copyright ownership and profitability of his art.
Indeed, in an interview he gave to Wired, KATSU said that, “It’s exciting to see [the drone’s] first potential use as a device for vandalism.” He later said that although his graffiti drone was still an early prototype, he was gearing up to unveil a more user-friendly version that would enable him to continue guerrilla art projects like this.
So KATSU is going to illegally deface more private property with an unlicensed drone…
That’s probably not something I should say aloud. I’m an attorney, an "officer of the court” sworn to uphold the law. But I don't much care for upholding laws that aren’t fair (like the Defense of Marriage Act), or facially neutral laws that allow unfair practices to take place (like New York’s controversial Stop and Frisk doctrine). Just because something is legal doesn’t make it right, and just because it's illegal doesn't make it wrong (like marijuana), and breaking the law through civil disobedience - even when it’s tense and violent as it’s been in Ferguson and Baltimore - can be a powerful tool for change.
But that can pose difficulties for lawyers. On the whole, we tend to be a risk-averse crowd. That's why you hire a lawyer after all... to help you protect your ass and your assets. This blog is no different. I write every week so that artists and filmmakers have enough legal knowledge to keep out of trouble. But I also know that staying out of trouble isn't always the right thing to do. Trouble can often be the catalyst for important change, and civil disobedience can be a good lens for determining what’s important. So let's look through that lens, shall we?
1. The FAA’s primary mission, according to its website, is to "provide the safest, most efficient aerospace system in the world.” For that reason, the FAA has promulgated numerous rules on drones (or Unmanned Aircraft Systems) to ensure the safety of people and property who might otherwise be harmed. But KATSU didn’t follow the rules and didn’t get permission. Does that matter? Does it matter that he vandalized the billboard at night when fewer people were around to get hurt?
2. Graffiti is an art form that is designed to destroy the property of others, and the City and State of New York each have laws criminalizing it. Does it matter that what KATSU defaced was an ad by a large corporation and not personal property like a home? Does it matter that the subject of the defacement was Kendall Jenner, a member of the widely disliked Kardashian family? Would it matter if he had spray-painted a billboard for a children's cancer hospital or if the ad had featured a beloved person like Robin Williams or Nelson Mandela?
3. Does it matter that KATSU’s drone didn’t create something beautiful, that it was just lines of red paint across Kendall Jenner’s face? Does it matter that his art isn’t about beauty but instead about the very act of vandalism and civil disobedience?
4. Does it matter that KATSU isn’t profiting from his art and that copyright is of little concern to him? In a society that heavily prizes economic reward, does that make his vandalism more acceptable or less?
Few of these questions matter in the eyes of the law. Graffiti is vandalism no matter what it defaces and how beautiful it is. Using a drone without a permit is a violation of federal airspace rules, no matter what the purpose may be. Copyright infringement still exists even if the infringer makes no money from it.
But all of these things do matter because it contextualizes what we’re seeing. We can infer what KATSU’s point of view is through these clues and decide if his voice is one we can support. If he purposely put people in danger by using a drone during the daytime or in a heavily trafficked area, that recontextualizes his art and makes it harder to support as an act of civil disobedience. If he vandalized personal property without reason and/or made a ton of money from it, he would be harder to support. That takes it out of the realm of boldness and puts it someplace else: recklessness, sociopathy, and good old fashioned greed.
I care that KATSU didn’t get permission from the FAA, but I care less because his nighttime usage probably kept a lot of people out of harm’s way. I care that he’s defacing private property, but I also care that he’s saying something about the ubiquitous presence of consumerism in our lives. I care that he’s not making money from this because it shows that he’s committed to the statement.
I enjoy seeing people using art and technology to make change. Reconciling that desire with my oath to uphold the law isn't easy and I struggle with it constantly. I think the first step is knowing what the law is and what your rights are. Only then can you push back effectively. Whether or not he consulted with an attorney, KATSU certainly knows what he faces every time he goes outside with a spray can. That knowledge is the difference between art that matters and art that’s just taking up space. That’s the difference between being bold and being reckless. KATSU decided that saying something, knowing that he could go to jail for it, is more important than saying nothing and being safe.
But knowledge is the beginning of wisdom, not the end of it. Taking action requires faith that your actions will spark the change you want, and the hope that standing up for what you believe in is worthwhile, even if your belief is unpopular or illegal. For lawyers, I think it's about using what we know about the law to educate our clients and empower them to take whatever bold action they have to, however dangerous. We need to give them faith and hope. That's what civil disobedience is anyway: the hope that a dangerous or illegal action will draw in enough energy to force a change. That's why Basil King said, "Go at it boldly, and you'll find unexpected forces closing 'round you and coming to your aid.”
KATSU wants to use drones to vandalize billboards in an attempt to start a conversation about the pervasive nature of ads in our lives. He wants to tell them "there's no height you can hang your ad that will put it out of my reach." There's something perversely noble in that. So I support it, even if I'm not supposed to.