Street art: the legal issues


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With the high profile sale of Banksy’s Slave Labour on 2 June 2013, it is opportune to consider some of the legal issues that arise from the creation and sale of “street art”.

Street art is graffiti painted or sprayed by an artist, who is usually anonymous, onto someone else’s property, usually a wall or another surface such as a traffic sign or hoarding. What makes it art, rather than just anti-social, is in the eye of the beholder, but the works of certain artists, such as Banksy, are widely recognised and appreciated and therefore have monetary value.

Crime
One point of debate amongst the lovers and haters of street art is whether or not it constitutes criminal damage to property. In order to prove criminal damage you must essentially show that someone destroyed or damaged property (or intended to or was reckless as to whether such property was destroyed or damaged) which belongs to someone else, without a lawful excuse. There is no defence of “artistic merit” and a wall may therefore be damaged even if the paint can be removed. The wall is still damaged, even if its value has been increased.

Trespass
Unless the surface is the public boundary of the property, the artist will have to trespass. That is a civil wrong and the owner could claim for damages or get an injunction, if the artist could be identified.

Ownership
In law, land includes buildings and fixtures, and once paint is on a wall, it becomes part of the land. Therefore, as soon as the artist creates his work, it belongs to the land owner. The owner for this purpose will be either a freeholder or leaseholder, and their respective rights and obligations regarding the art will depend on the terms of the lease, which would almost certainly have been drafted without any thought of street art.

Assuming that the owner is legally and physically able to remove the wall or plaster intact, he can then try to sell it and could pass good ownership title to a purchaser. However, the purchaser, and any subsequent purchaser, should tread with care. He needs to see proof of the full history (provenance) of the art. Whereas with other contemporary art that would go back to the sale by the artist, with street art it could only go back to the original location, the ownership of the land and the right of the land owner who first sold the art.

If the purchaser takes his chances, he could well find himself being sued by the true owner for the return of the art, and facing prosecution for handling stolen goods. If he manages to sell, he could be sued for the proceeds for “conversion”, and prosecuted under the Proceeds of Crime Act. Although it might not yet have been used for stolen street art, all purchasers of art are well advised to check the Art Loss Register.

Attribution
The other major concern facing a purchaser is attribution: how can he be sure that what he is buying was in fact created by the particular street artist? For many conventional artists, there is a catalogue raisonné giving a full list of works done, or an associated foundation or certification body which can confirm or officially decide that a particular work is attributable to the artist. With anonymous street art, there is little hope of that, and the simplistic nature of the work will not give experts much to work on. Banksy has an equally anonymous certification body called Pest Control, but that excludes his street art (see Paul Howcroft’s blog post of 15 May 2013 at www.artlawlondon.com)

Droit de suite
Since 2006, the UK has provided for artists’ resale rights (droit de suite). The artist or his heirs, for 70 years from his death, are entitled to be paid part of the sale price of art sold on the art market. The maximum to be paid is €12,500 per item, based on a sliding scale from 4% down to 0.25%. A street artist might decide at some stage that the money is worth more than anonymity, and bring a claim.

Copyright
Copyright will subsist in the work, which will be protected as an artistic work. Under the legislation copyright exists in such graphic work “irrespective of artistic quality”. The art has to be original in order to qualify for copyright protection but it is not necessary for the whole of the work to be original for copyright to exist.

If someone copies a copyright work, then there is an infringement. Copying an artistic work means reproducing the work in any material form – this could include the taking of a photo of a street mural and recreating the photos as postcards to sell to the public. There would be an argument as to whether the photographs were the “expression of the intellectual creation” of the photographer, but if the artist ever made him/herself known then the artist would be entitled to any profits made by the photographer in this scenario.

Preserving for the local community
There have been strong local community complaints about the removal and sale of Banksy’s Slave Labour from the Turnpike Lane area of London’s Wood Green (http://tinyurl.com/pdccwdl).

If you like the art on your wall or work sprayed on a public thoroughfare how can you make sure that it stays? It might please some Beatles fans to hear that the Abbey Road zebra crossing, made famous by the album, Abbey Road, was recently given a Grade II listing due to its cultural interest and historical importance (http://tinyurl.com/p5bbr7a).

Local authorities and councils are taking more of a proactive approach to preserve street murals by either restoring street art, removing graffiti from graffiti or by submitting listing applications as above. It will depend on there being a unanimous consensus amongst the members of the local community, the local authority and, importantly, the owner of the property, but it is an interesting approach that is worth considering.

Paul Howcroft, Partner (phowcroft@fladgate.com)

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