Graffities used to be considered vandalism and delinquent behaviour. They have now become a well-respected art form through “street art”. Where graffiti is used to refer to paintings of names and characters on urban surfaces, street art refers to a more elaborated form that also includes the early graffiti movement but has evolved into spray paintings, mosaics, posters, knitting installations… As such, graffiti artists have been using their skills to make art that stops people in their tracks and some of these artists have made a name for themselves in the more “prestigious” art scenes.
Graffiti artists like Banksy, Shepard Fairey, Zephyr, Blade, David Choe, Saber, and others have been incredibly influential for the genre.
But does copyright protect Street art? Who owns the piece of art? The creator or the owner of the physical support? Can anyone freely reproduce the content?
These are the questions we will try to answer today.
In a nutshell, copyright is the intellectual property right that relates to literary and artistic works, such as paintings, sculptures, films, music….Copyright even protects computer programs and databases. As always, remember that copyright does not protect ideas but the expression of the idea. According to the Berne Convention (signed by 179 countries), copyright protection arises automatically from the moment of creation and does not require registration to be protected.
What rights does copyright grant you?
- Economic rights: granting you the exclusivity over the commercial exploitation of your work (reproduction, distribution, communication to the public and the right to authorize derivative works)
- Moral rights: rights that are closely related to the authorship and cannot be waived (the right to be recognized as the author and the right to defend the integrity of the work).
Don’t forget that in relation to artwork, in Europe, we also have the “droit de suite”. This right grants the author a percentage of the resale price in relation to successive resales of his/her work when made by professionals of the art market.
These rights will last for the entire life span of the author + 70 years after the death. Once this period has elapsed, the work will fall into public domain and any third party will be able to use the work without authorization.
Can street art be protected by copyright?
Short answer: yes, as long as the work is original. Take into account that some countries, like the US or the UK, also require for the work to be fixed on a tangible form (for example, makeup artistry would not be protected by copyright because it would disappear when washed off). This means that once an original graffiti is created, permission will be needed in order to reproduce the work in another medium. Hence, the graffiti cannot be reproduced in books, clothing, advertisement and so on without the artist’s permission. Taking a photograph of all or a substantial part of a graffiti artwork is also considered as a reproduction under copyright law.
This is what happened in this US case involving H&M and the artist Jason Revok Williams. It all started with an advertisement campaign from H&M, in the background, there was a graffiti from Jason that is part of a mural located in Sheridan Playground in Brooklyn. Jason then reached out to H&M through its lawyer, asking for the campaign to be removed since it featured is work of art without requesting prior authorization. H&M took the matters to court and the problem arose: what is art? According to H&M “Given the circumstances in which the ‘works of art’ claimed by the client are the product of a criminal conduct, Mr. Williams has no copyright rights to assert. The right to copyright protection is a privilege of federal law that does not extend to illegally created works”. The judge assigned to the case seemed to be of the same opinion. So what tilted the balance? Social media. The support that Jason got from social media, and the corresponding backlash that H&M suffered, made H&M drop the complaint.
Take into account that in order to enforce their rights, most of these artists would need to come out of the anonymity, exposing their identity and potentially putting them at risk of prosecution for creating the work in the first place. This might deter them from effectively enforcing their rights, but it does not mean that any third party is allowed to take advantage of this peculiar situation.
This would be the general rule of thumb. However, copyright law has introduced certain limitations to the author’s exclusive rights, specifically when the work is permanently located in public spaces. Take into account that the exception and its extent is not harmonized at EU level, hence, the specificities may vary from Member State to Member State. For example:
- Spain : works permanently located in parks, streets, squares or other public places may be reproduced, distributed and communicated freely by means of paintings, drawings, photographs and audiovisual procedures.
- UK: the right to freely reproduce a work in public spaces only applies to sculptures, buildings and craftwork. Therefore, the exception here does not extend to graphic works (including street art).
- France: the exception only applies to architectural works and sculptures, permanently placed on public roads, when the representation is carried out by a natural person and without commercial intentions.
As you can see, the artist’s rights in relation to street art vary depending on the MS where the work is located, which might make it challenging to know when can someone reproduce or no the work in question.
Fun fact: vandalism is punished, in most countries, by criminal law. Hence, as beautiful as a piece of street art can be, if it is made without the authorization of the owner of the wall, it might be punished by criminal law. However, being punished as a criminal offence will not prevent the work from being protected by copyright.
Who owns the work? The artist or the owner of the wall? Can the wall be demolished?
Well, this is a complicated question that has, unfortunately, no clear answer to this day. Yes, street art is becoming socially acceptable but the legal issues around these creative works are far from being resolved. Case law is scarce in Europe and the only case law we can turn to for answers are from US courts.
Gerald Wolkoff, once a patron of graffiti artists, allowed them to use his abandoned buildings in Long Island City, Queens (known as 5Pointz) as a canvas. For 20 years, artists painted and visitors came from around the world to enjoy this unique exhibit in an otherwise forgotten part of the city.
In great part thanks to the graffiti exposition, the neighbourhood around 5Pointz in time became hipped and property values rose. Wolkoff then decided to turn his warehouses into condos and, in 2013, the developer whitewashed 5Pointz to the great disappointment and despair of the graffiti artists.
After years of legal battles, in February 2020, a federal district court judge awarded the maximum amount of statutory damages based on Wolkoff’s bad faith, granting $150,000 for each of the 45 works, for a total of $6.75 million.
This is considered a landmark decision and a big win for graffiti, legally and socially. Street art rose in the culture’s estimation, and graffiti artists became peers of their traditional counterparts, beloved by museums, galleries, auction houses, and people all around the world.
Obviously, if the work has been created illegally, the general consensus is that, the position of the owner prevails over the work that has been created illegally on the property. But this was not the case here where Wolkoff welcomed and encouraged graffiti artists to share their art.
Could an artist prevent his work from being relocated?
We mentioned above the right to preserve the integrity of the work. In Spain, for example, one could invoke this right to prevent the work from being removed from its original place. The work only exists and makes sense because of its specific location. However, in the UK such a right could only be invoked to avoid the destruction of the work but not its relocation.
Street Art is a topic with very few jurisprudential developments due, among others, to the fact that awareness of its market value is still ongoing. Most of the cases that have dealt with the protection of street art by copyright come from the US. The artists preferring to invest their money into creating new works rather than pursuing legal actions.
There is no doubt that the rise of street art in our current society will continue to encourage the development of jurisprudence that will help to clarify its legal framework.