Street Art and IP protection. What is the legal framework to consider?

Is ‘legality’ a requirement to enjoy intellectual property protection?

‘Street Art’, annoyance or art?

Street Art has come quite a long way: from being perceived as what’s left behind by villains or vandals, spoiling property fencing, buildings’ fronts, subways or walls of abandoned real estate it has slowly found its way to appreciations of serious artistic skills and public messaging about widely acknowledged social issues or neighborhood problems. It started off with chalk drawings on sidewalks and stencils on freshly painted walls, developed into boycotting messages on shop windows of luxury brands and ended up with entire building facades covered with spray paint graffiti themes.

Over the time – and due the efforts of some truly talented people – the initial simple ‘spoiling of things’ resulted in ‘products’ of serious artistic value, appreciated by the community of the drawing’s location and - sometimes – becoming a tourist attraction (just think of the 5Pointz compound in Queens, New York, or the works of Banksy). Hence, while It started off with angry owners repainting property fencing or buildings walls and filing complaints, it ended up in lawsuits dealing with complex legal issues about ownership, moral rights, IP protection.

A changing attitude towards Street Art.

Street Artists had to face increased enforcement actions from Municipalities and other Public Authorities, feeling that smearing trains, graffitiing privately owned buildings and painting monuments or walls on public premises could not be simply tolerated, when it resulted in criminal offenses. Unscrupulous dealers had wall sections torn out to sell valuable graffiti on the art market. Real estate speculators had no problem to cover everything with fresh paint or even to destroy street art whenever it suited their development plans. Renown retail chains have used ‘street art’ in their commercial communication, ending up before a Court and having to deal with legal issues.

On the other hand, several Municipalities recognized the potential of street art and – feeling that it had just to be somehow ’governed’ – started offering writers spaces made available for their artistic creations: mostly concrete walls or structures such as fencing of city sections or highways, bridges, depressing subway sections, train track demarcations, stadium parking, etc.

Street Art in the Courts.

Courts started to separate the criminal aspects (e.g. violation of private property, damages to monuments on public premises or to historic buildings) from those relating to moral rights, preservation obligations and copyright protection. With respect to the 5Pointz situation the Press widely reported about the judgement of a US District Court forcing the compound owner - who initially had covered all wall paintings with white color and then had demolished the entire building – to indemnify 21 street artists, authors of the graffiti with 6,75 million USD for having destroyed America’s biggest aerosol art collection. The legal basis of the decision is to be found in the Visual Artists Rights Act (VARA), which affirms the right of a visual art work’s author to “to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”

Does copyright protection prevail over the ‘dirty hands’ doctrine?

This approach has given raise to an interesting discussion about whether street art can – or cannot – claim protection under copyright provisions. Supporters of the so-called “dirty hands”doctrine have denied such possibility, arguing that being street art (frequently) illegally placed on third party properties, it does not enjoy such protection. Looking at the Berne Convention (Paris Act July 24, 1971, for the protection of literary and artistic works), we see that copyright is recognized and granted in relation to “..every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as … works of drawing, painting, architecture, sculpture, engraving and lithography; ..illustrations, maps, plans, sketches and three-dimensional works ..”. Prior to the Berne Convention, Italy had already adopted a Copyright Act (Statute Law no. 633 of 1941), which established protection for “Works of the mind having a creative character and belonging to literature, music, figurative arts, architecture, …” (Article 1) and specifically (so Article 2) for “ works of sculpture, painting, drawing, engraving and similar figurative arts,” and set that “copyright shall be acquired on the creation of a work that constitutes the particular expression of an intellectual effort”(so Article 6). In addition, the Law provided for the author’s right “to claim authorship of his work and to object to any distortion, mutilation or any other modification of, and other derogatory action in relation to, the work, which would be prejudicial to his honor or reputation” (so Article 20).

It follows that while a work – to enjoy protection – must be the result of a ‘creative effort’, there is no original requirement of ‘legality’ necessary to the purpose.

In Italy, Writers have frequently been facing hard times, i.e. action from public prosecutors for all kinds of criminal offenses (e.g. damage to private or public property, damage to cultural heritage, defacement of public or private property, etc.).

However, a few years back a First Instance Court in Milan issued an interesting cease and desist injunction in the context of an interim proceeding involving two local Writers. Mr. M., who had achieved a reputation for his graffiti, murals and other street art works, objected against another street artist’s posting – on his blog – of pictures of M’s works without any reference to the author of such works. He found that the blogger by omitting such reference, by qualifying himself also as a ‘writer, street artist and color juggler’ and by posting over 80 of his own (sometimes very similar) works, had caused confusion and misperception about the authorship of M’s works and had performed plagiarism. The Court sided with the plaintiff and awarded injunctive relief (typical for IP infringement cases), i.e. it ordered the blogger to remove the pictures of M’s work from the blog as well as the seizure of the blogger’s works deemed too close to M’s graffiti. It also ordered the blogger to publish a notice about the injunction in a sector specific magazine.

Street Art protection, a not yet completed process.

Despite of becoming ‘socially acceptable’ (at least to certain extent), the legal issues around Writers’ creative works are far from being resolved or even being neatly defined. There is more to come on the topic in the future.