Street art is controversial. A Banksy 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. Is street art always vandalism? Does copyright protect the artists’ work? Can street art ever be destroyed? This article explains intellectual property (IP)  issues surrounding street art and how creatives can protect their work.

Art in the Public Sphere

Is street art vandalism or art? This underlying question often arises when graffiti becomes the topic of conversation. Graffiti developed from acts of rebellion and artistic expression and is more commonly known as tagging. Tagging is an act of ownership, whereby people write their name or handle in public. Street art, on the other hand, is not about ownership, but rather about sharing concepts and starting conversations. Unlike graffiti, it not only exists on the streets but also in photos, books and even museums.

Take Banksy, for example, a global icon. His public pieces are political statements and worth hundreds of thousands of pounds. His street art has been reproduced in many shapes and forms and displayed in exhibitions at museums.

The contrary view is that street art is the abuse and misuse of public space: an eyesore to some.

Is Street Art Illegal?

Without authority from the property owner, street art may be illegal. Therefore, to legally create street art, you should obtain permission from the owner of a building. 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 through a photograph.

Protecting Street Art Through Copyright

Street artists receive copyright protection for their art as artistic work. 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 the street art for the lifespan of the artist plus an additional 70 years.

The property owner is not the copyright owner of the art unless there is an agreement in place that states otherwise.

Collaboration

Street artists often work collaboratively. When collaboration occurs, the artists that work together jointly own the copyright in their work.

Commission

Street artworks are often commissioned to promote a business or embellish a 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 still protects their work.

Protecting Street Art Through Moral Rights

Street artists also have moral rights in their work, which are separate to copyright and are personal rights that can not be assigned.

Moral rights include:

  • integrity: the right to not 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 need to first obtain consent from the street artist. You will likely need a license agreement. While a license agreement grants you the right to use the street art, the artist still retains all ownership rights to their work.

Many large companies have gotten into hot water when using street art without permission when advertising. The companies typically agree to settle the matter out of court, to avoid time-consuming and costly litigation.

For example, H&M used street art by Jason “Revok” Williams in the background of their sportswear advertising campaigns without first obtaining his permission. Eventually, they removed the campaign and settled the matter.

Infringement of Copyright and Moral Rights

Using street art without permission from the artist may infringe upon their moral rights and copyright. Usage may 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 criticism and review, reporting the news and current affairs or research and study, it falls under the fair dealing exception and you are not infringing.

Incidentally including the street art in a cinematic work is also an exception. What is deemed incidental depends on the specific circumstances. However, this exception does not apply if you publish the cinematic work online. Therefore, you must obtain consent and have a license agreement to reproduce street art or publish such on your website.

Key Takeaways

It is important for both street artists and property owners to be aware of their IP rights. Street artists should also be mindful that they can commercialise their art through license agreements and enforce their legal rights.

If you have any questions or need assistance enforcing your rights, get in touch with LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Sophie Glover
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