Street art is controversial in Australia, as it is worldwide. A Banksy equivalent in your town or suburb may become a cultural icon and bring tourists in droves. However, without the building owner’s authorisation, street artists (even Banksy) may face prosecution for defacing the property under Australian law. As such, you may wonder whether street art is always vandalism. Furthermore, copyright claims should be considered, as they may protect the artists’ work. This article explains intellectual property (IP) issues surrounding street art in Australia and how creatives can protect their work.
Art in the Public Sphere
Many people view street art as vandalism, while others consider it art. This underlying question often arises when graffiti becomes the topic of conversation. Graffiti developed from acts of rebellion and artistic expression is commonly referred to as tagging. Some interpret tagging as an act of ownership, where individuals write their name or handle in public. Street art, on the other hand, is not about ownership. Rather, it is about sharing concepts and starting conversations. Unlike graffiti, it exists not only on the streets but also in photos, books, and museums.
Is Street Art Illegal in Australia?
Without authority from the property owner, street art may be illegal. Under various State and Territory laws, unauthorised marking of property can be considered vandalism or property damage. Therefore, to legally create street art, you should obtain permission from the building or property owner. If you fail to seek approval, the property owner or local council may remove or paint over your art.
However, in saying that, part of the charm of street art is its transient nature. The work can be preserved and reproduced in other ways, like a photograph.
It is worth noting the removal or destruction of street art, especially if it has gained significant cultural or monetary value, can raise complex legal questions about property rights versus cultural preservation.
Continue reading this article below the formProtecting Street Art Through Copyright
In Australia, copyright is protected by the Copyright Act 1968 (Cth). Street artists automatically receive copyright protection for their art as artistic work without the need for registration. Copyright offers protection where the work is:
- a result of skill and effort;
- original; and
- in a material form that is recorded, e.g. a mural, graffiti, stencils or sketches.
Under copyright, street artists have the right to prevent others from reproducing, publishing, or communicating their work without consent. Copyright exists in street art for the artist’s lifetime plus an additional 70 years.
The property owner is not the copyright owner of the art unless there is an agreement that states otherwise. As such, if a property owner has engaged you to create artistic work on their property before you commence the work, you should ensure that you both agree on who owns the copyright. If a written agreement is in place, you might want to seek assistance from a lawyer to review the agreement to ensure your rights are protected.
Collaboration
Street artists often collaborate. When this occurs, the artists jointly own the copyright in their work.
Commission
Street artworks are often commissioned to promote a business or embellish private property. Unless otherwise agreed, the artist owns the copyright in the work.
Anonymity
Even if the artist creates their work anonymously or under a pseudonym, copyright protects their work.
Protecting Street Art Through Moral Rights
Street artists also have moral rights in their work, which are separate from copyright and personal rights that cannot be assigned.
Moral rights include:
- integrity: the right not to have the work subject to derogatory treatment;
- attribution: the authors must be acknowledged; and
- not to have authorship falsely attributed.
Permission to Use Street Art
If you intend to use street art for commercial purposes or in advertising for commercial gain, you must first obtain the street artist’s consent. You will likely need a licence agreement. While a licence agreement grants you the right to use the street art, the artist still retains all ownership rights to their work.
Many large companies encounter problems when using street art without permission in advertising. To avoid time-consuming and costly litigation, companies typically agree to settle matters out of court.
Infringement of Copyright and Moral Rights
Using street art without permission from the artist may infringe upon their moral rights and copyright. Examples of usage include featuring the street art on your website, photographing the art for commercial purposes, or publishing the work in a magazine or book.
However, if you reproduce the street art for certain purposes, it may fall under the fair dealing exception in Australian copyright law. The fair dealing exception allows copyright material to be used in the following situations:
- criticism and review;
- reporting news and current affairs;
- research and study;
- parody or satire; or
- professional advice by a lawyer.
To qualify as fair dealing, you must genuinely use the material for one of these purposes, and the use must be fair in the circumstances.
Including street art in a cinematic work also counts as an exception under Australian law. The specific circumstances, such as whether the art is in focus or merely part of the background, determine what qualifies as incidental use. However, this exception no longer applies once you publish the cinematic work online. Accordingly, you must obtain consent and secure a licence agreement to reproduce or publish street art on your website.
When you digitally reproduce street art, such as sharing photos on social media, you need to consider additional copyright issues. While many tolerate personal, non-commercial sharing, using such images for promotional or commercial purposes can violate copyright.
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Key Takeaways
Both street artists and property owners must be aware of their IP rights. Street artists should also be mindful that they can commercialise their art through licence agreements and enforce their legal rights. While Australian law provides strong protections for street artists, the global nature of street art means that these protections may vary in other countries.
If you have questions about IP issues surrounding street art and how you can protect it, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
In most cases, street artists will benefit from copyright protection if their artistic work is original, the result of skill and effort, and in a material form (for example, a mural).
Using street art without permission from the artist may infringe upon their moral rights and copyright. To avoid infringing upon their copyright and moral rights, you should seek permission from the author to use street art.
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