Your street art is my street art

Street (graffiti) art is often embraced by communities as a way of brightening the urban landscape or providing social commentary.

These days, street (graffiti) art is often embraced by communities as a way of brightening the urban landscape or providing social commentary.  Property owners (and other parties) have also begun taking advantage of the potentially significant commercial value in street art.  Caught in the mix are the (often anonymous) street artists. 

claire foggoraymond wattThere's a real potential for conflict amongst these interest groups, as recently experienced in the clash over rights to a wall mural in London painted by the well-known street artist, Banksy.

 Banksy's street art is a phenomenon.  In many cases, property owners have not consented to the painting of Banksy's street art on their buildings.  Some might therefore characterise Banksy as a vandal rather than an artist, yet his works are celebrated and highly-valued. 

 Banksy's mural, Slave Labour, recently mysteriously disappeared from the wall of a privately-owned store building in the Borough of Haringey, London.  It is thought that the artwork was originally painted without the consent of the building owner.  The mural, which had been cut out of the wall, later appeared for sale at a Miami auction house, with an estimated selling price of £450,000.  The Haringey community was outraged.  Some community members asserted that the work was painted for the community and was therefore held by them collectively.  The Miami auction house later withdrew Slave Labour from auction, although did not confirm whether the vendor was also the owner of the building that Slave Labour first appeared on.

 In New Zealand, property owners who have not consented to a street artwork being produced on their property will usually own that physical artwork.  Accordingly, in many cases, property owners can deal with the street art as they wish – clean it off, alter it, or sell it.

Community members will usually have no legal rights to ownership or use of street art produced without consent on private or public property.  However, a strong community voice can impact the fate of street art, as in the Slave Labour controversy and a recent incident involving popular New Zealand street artist, Askew.  Askew had painted a large wall mural on a building on Poynton Terrace, Auckland, with the consent of the building owner.  However, in 2011, Auckland Council contractors painted over the mural without the permission of the building owner or Askew.  There was an outcry by Askew and the local community on social media, and the Council reportedly approached Askew to settle the matter.  Ironically, the unauthorised painting-over of Askew's mural seems to have amounted to vandalism.

 For murals and other artworks affixed to buildings in New Zealand, protection could be sought through the grant of a heritage order under the Historic Places Act 1993.  However, obtaining protection of street art by a heritage order is uncertain, particularly given that street art is often seen as vandalism and of little heritage value.

Although a street artist may not own their physical work, New Zealand's Copyright Act 1994 protects copyright and certain "moral rights" of authors (creators) of artistic works.  Street artists will own copyright to their street art even though they do not own the physical artwork itself – this means that they can stop others copying it.  Moral rights of authors protect the integrity of artists and their artworks, and include the right of artists to object to derogatory treatment of their artworks.  Street artists may also be able to prevent other parties making misrepresentations in trade about their artworks.

 However, street artists wanting to enforce their rights face a dilemma where they have produced art on a property without the consent of the property owner.  By making their identity known, street artists risk admitting that they have vandalised property.  Street artists may also find it difficult to prove that the artwork is of their own hand, and the Courts may be reluctant to grant remedies to street artists whose work was produced unlawfully.

The Slave Labour controversy shows the potential commercial value of street art, although rights relating to street art are not always clear.  In theory, clarity could be improved by street artists seeking consent from property owners before creating their works (something which is perhaps contrary to street art culture), and in the case of commissioned street art, having written agreements in place at the outset. 

Still, whatever legal rights apply to an artwork may not divert a community whose sentiments are simply: "your street art is our street art."

Claire Foggo is a senior associate in the Simpson Grierson Intellectual Property team. She has extensive experience in all aspects of commercial and contentious intellectual property law.

Raymond Scott is an associate in the Intellectual Property team at Simpson Grierson.  Raymond has a particular interest in legal issues relating to the visual and performing arts.