Have you ever walked on Boulvard Olimpico and been astonished by the work of Eduardo Kobra, or feel the irrepressible creative spirit on streets of Bristol, marked by Banksy or maybe you took a photograph of graffiti made my David Choe, to capture the illuminating colors he uses?
The debate over graffiti has always been heated. Some see it as a vandalism and delinquent act, other appreciate it and see it as a mean to revitalize the public spaces. No matter of your personal sentiments and opinion, graffiti have become a well-respected art form. Graffiti artists use a variety of styles and forms from spray paintings, to posters, mosaics and installations, and such their unique and original art is protected by copyright. Note, however, that a random tag on any old wall that has no meaning, is not considered a original art, and can be seen as a vandalism. Copyright protection is given automatically to works of art, however some countries, like the US or the UK, also require for the work to be fixed on a tangible form (for example, makeup artistry would not be protected by copyright because it would disappear when washed off) and require registration in order to sue for copyright infringement. This means that once an original graffiti is created, permission will be needed in order to reproduce the work in another medium. Hence, the graffiti cannot be reproduced in books, clothing, advertisement and so on without the artist’s permission. This also applies for ads, advertising campaigns, social media videos, TV spots which feature graffiti. Taking a photograph of all or a substantial part of a graffiti artwork is also considered as a reproduction under copyright law. However, what happens if the graffiti is destructed?
In USA, Visual Artists Rights Act (VARA), regulates this aspect at its section 106 (d) (1) (B), which attributes to the artist the specific right to “prevent any destruction of a work of recognized nature”. In 2018 US District Court for the Eastern District of New York ruled in favor of a group of graffiti artists after G&M Realty, without warning, had whitewashed their works, which had been (authorised and) displayed on a collection of dilapidated warehouses in New York City (here). Additionally, property owners, should not assume that they have the right to destroy or mutilate artwork without obtaining required permits, permission from the artists, or by obtaining a VARA waiver in advance. This also applies for ads, advertising campaigns, social media videos, TV spots which feature graffiti.
In Europe the right to object to the destruction of a copyright work can be inferred based on the right of integrity accorded under Art. 6bis of the Berne Convention (i.e. “the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation”). However, when intellectual property rights of an artwork interfere with landowner’s property rights, typically the property rights are respected over that of an artist’s exclusive and/or moral rights.
A good example is from Spain when the well known Todo es Felicida, the iconic graffiti painted by Jack Babiloni in Madrid and whitewashed in 2016 by order of the Spanish Commission of Cultural Heritage.
In Slovenia, graffiti on public spaces or private facades, with which authors express themselves artistically, also enjoys the status of an author’s work. It should be emphasized that the status of a copyright work is independent of the potential illegality of the creation of graffiti, since according to the majority opinion of the theory, the (illegality) of the creation of graffiti is not a defining sign of copyright protection. In other words, the status of a copyright work does not respect the provisions of the acquis and morals and arises even if it is in conflict with them.
An architect as an author can, in the event that a street artist interferes with his work with graffiti or spoils it and thus diminishes the author’s personality, requires legal protection both under the provisions of the ZASP and under the general rules of tort law. In doing so, the architect may decide on copyright protection independently of the will of the building owner, even if the owner agrees with the existence of graffiti. Pursuant to Articles 167 and 168 of the ZASP, the architect has at his disposal a lawsuit, which may (also cumulatively) contain a prohibition, removal or compensation claim, and the court may also, regardless of the compensation for pecuniary damage, award the author fair monetary compensation for mental pain suffered due to violation his moral rights, if he realizes that the circumstances of the case, and in particular the degree of pain and their duration, justify it. It is worth noting that the existence of a violation of an architect’s right does not matter whether the street artist knew about his violation or even wanted it, as the violator’s good faith is not relevant in assessing his responsibility.
In order to resolve the conflict between the rights of a street artist and an architect, point 3 of the first paragraph of Article 167 of the ZASP is relevant, which stipulates that an architect may, as the holder of the right to respect copyright work, request that the consequences of the violation be removed. This means that artist’s graffiti will be repainted and consequently his copyrighted work will be destroyed. In practice, it is rare for a street artist to reveal identity and acknowledge his or her wrongdoing, but it is not difficult to imagine a situation where a street artist wants to protect his or her artwork in the event that an architect requests a return as a side intervener in a lawsuit against the building owner, or the artist would file a separate lawsuit against the owner and or architect with a prohibition claim or with a claim for damages if his graffiti were destroyed.
From the perspective of Intellectual property law, graffiti remain an interesting topic due to the nature of an artwork, the problems they raise, and complex issue of overlaps with other areas of law, which is evident in a variety of lawsuits and case studies. Interesting, while Europe remains the fame and renown of graffiti, it seems it is far behind in adapting similar rulings we witness in USA.