Black and white image of a corner building covered in graffiti tags

The Artistic-Legal Divide: Protecting Street Art in a World That Criminalizes Graffiti

The idea that graffiti consists of ugly tags parasitically embedded on buildings’ walls is a common perspective around the world. But at the same time, there is a deep respect and admiration for extravagant street murals that burst with colour. The notions of illegality that are inevitably tied to graffiti mean artists often struggle to protect their work and have it seen as legitimate art. To avoid legal consequences, most street artists remain anonymous. This anonymity is problematic in the digital age, as online users can redistribute images of works without credit. For instance, while writing this article, it was difficult to credit each and every artist because their identity remains unknown. The artists we can credit are often those who produced street art through legal means such as art festivals and community programs.

The fine line

Two collaged street graffiti images, one of dull graffiti marks etched on a brick wall and a more colourful vibrant artwork
Image Source: columbia.edu

Street art is artwork created on private or public property, sometimes illegally without permission from the property owner. Nevertheless, artists remain copyright holders of their works, insofar as they are ‘original works fixed in a tangible medium of expression.’ So, while the practice itself may be illegal in some circumstances, there are still certain legal protections that are afforded to graffiti-based works. As such, street art occupies a unique and ambiguous space within the legal realm.

For instance, in some South American countries, graffiti is a way of ‘beautifying’ the city. Yet at the same time, certain types of graffiti with unreadable fonts – particularly ‘hip hop graffiti’ –  is considered illegal.

Moreover, courts are typically reluctant to define the subjective concept of ‘art’. Art law is often limited to a case-by-case basis. Therefore, it has proved difficult to draw clear trends in the legal definition of art. As a result, street art continues to hold an uncertain legal status. Without the support of the law, the public is more inclined to associate graffiti with vandalism and illegality.

The difference between street art and graffiti

Street art is ‘public-space artwork that’s created for consumption outside of the typical art gallery setting’. It is often associated with urban regeneration. In other words, it allows spaces to be afforded a creative reputation that attracts visitors and investors. Street art entertains its viewers in a public address; it conveys a message and engages the public. For example, Banksy is a world-renowned street artist who creates works that often entail rich political commentary – they tell a story in the form of ‘aesthetic protest.’

A Banksy graffiti artwork on a brick wall with green paint, three children in a boat and the text ‘we’re all in the same boat’
Artwork by Banksy/photography by PA via The Guardian

Graffiti, on the other hand, typically relates to practices like tagging. These works focus on stylised text and words, usually incorporating the tag name of the writer and their associated crew. The letter style’s complexity often renders graffiti illegible by a broader public audience. Therefore, graffiti is frequently seen as an egoistical form of private communication among writers who appropriate public space to carry out these messages.

Man walks by a beige graffiti-tagged wall with his hands in his pockets
Image Source: ABC News/Allissa Oughtred

Graffiti’s criminalisation has roots in New York. The rapid proliferation of graffiti in New York throughout the 1980s exasperated the city’s growing problem of urban decay. Around this time, ‘broken windows theory’ was rampant and informed most policing strategies. This concept states that visible signs of crime and civil disorder create an urban environment that encourages further crime and disorder (including more serious offences). As a result, smaller crimes and signs of urban decay (like graffiti) were heavily policed and criminalised as a way of cleaning up the city and reducing crime.

Still, the difference between graffiti and street art remains arbitrary. Like graffiti, street art is often illegally practiced without permission from property owners. In addition, sometimes it is practiced by people who are also embroiled within the graffiti subculture. Nowadays, perhaps what separates street art and graffiti most is diverging public perceptions.

Graffiti as vandalism

Black and white image of a corner building covered in graffiti tags
Image Source: graffitipro

This perspective of graffiti centres around the law and its criminal status. Graffiti is seen as a dangerous activity that makes other community members feel unsafe. It is seen as inextricably tied to property law and trespass law, and many governments take a ‘zero-tolerance’ approach when dealing with graffiti artists.

A vandal is generally understood as someone who ignorantly destroys property, or anything beautiful and worthy of preservation. But for most graffiti inscribers, their work is less about destruction and more about adding something to the environment.

Graffiti as art

Colourful graffiti lane with a painted woman peeking around the corner edge of the wall
Image Source: Wikipedia

One of the main constituents of ‘art’ is freedom of expression. Graffiti exercises this right by taking creativity to the streets. Some artists view ‘legitimate’ and regulated avenues like galleries and museums as profit-making enterprises that disconnect art from everyday life. So they are compelled to create art on city walls accessible to everyone, not just the ‘rich and educated.’

Some artists are also commissioned and paid to paint graffiti murals in public places. By turning dull walls into canvases for creative expression, artists can add character and uniqueness to city areas. In this sense, the commercial aspect affords some credibility to graffiti artists, who are able to distance themselves from the everyday street tags that plague city walls.

Unfortunately, given graffiti’s dominating status in society as an illegal act, street artists often have difficulty protecting the destruction or uncredited redistribution of their work.

The following section examines the problems faced by street artists in protecting their works. Copyright laws exist for all artists, but there are still limitations in using a legal avenue to protect what is seen as an illegal act.

The difficulties of protecting street art in the digital age

Instagram explore page for the hashtag ‘streetart’
Image Source: Instagram

There is an unavoidable conflict between the fundamentals of copyright and social networking sites (SNS). Specifically, this involves the premise of copyright law as a restrictor of copying and sharing, compared with the endorsement of sharing cultures on SNS. In a ‘cultural remix environment’ that normalises the unlicensed use of copyright material, the legitimacy of legal regulations that allegedly protects artists’ work is increasingly compromised. Instagram in particular has been recognised as one of the most popular platforms for image re-circulation. And there is an emerging battle between street artists and Instagram influencers as murals become backdrops for marketable aesthetics online. As seen in the image above, a quick search of ‘street art’ on Instagram reveals millions of posts, assumably taken and shared by viewers (not the artist). Does this count as copyright infringement? There is no clear answer.

The increasing commercialisation of street art by large corporations

Large companies are increasingly exploiting graffiti art in public places as backdrops for their advertising. Artists argue that this is an unauthorised use of their work. Two recent examples of corporations misappropriating street art are Mercedes Benz LLC v. Lewis (2019) and H&M v. Jason Williams (2018).

Mercedes Benz LLC v. Lewis

The recent US case of Mercedes Benz LLC v. Lewis (2019) offers some insight into the ongoing violation of street artists’ rights by companies in the digital sphere. In this case, Mercedes Benz used an artist’s mural in the backdrop of an advertisement for their new vehicle in Detroit. These photos were later posted on Instagram. The artist described it as ‘totally unacceptable’ that Mercedes exploited his work to advertise a $200,000 car without compensating him financially.

Screenshot of Instagram post showing a black four-wheel drive car driving past a street art mural
Image Source: Detroit Free Press / via @Mercedesbenz

H&M v. Jason Williams

Corporate misappropriation of street art in digital advertising was also seen in H&M v. Jason Williams (AKA Revok) (2018). Retailer H&M filed a lawsuit against street artist ‘Revok’. They requested a declaration that its use of one of Williams’ artworks as a backdrop for an advertising campaign was lawful. Their primary argument centred around the ‘illegality’ of graffiti, claiming that the street art was vandalism and therefore not protected by US copyright law. But in making this argument, H&M failed to realise that even with so-called ‘illegal’ street art, copyright is held by the artist, not the property owner.

After significant outcry from the online artist community on Instagram, the lawsuit was settled. Rapid sharing and image redistribution in the digital realm has certainly compromised the rights of street artists, but this example demonstrates one way that social media might actually be beneficial in supporting the rights of street artists. Unfortunately, however, H&M’s withdrawal from the lawsuit was not motivated by an understanding of artists’ rights. Rather, it was an attempt to mitigate an adverse company reputation after being slagged online.

Image of H&M’s advertisement with Revok’s artwork in the background
Image source: thefashionlaw

The limits of protecting street art through copyright law

Graffiti on a garage door with a yellow glowing justice scale overlayed on top
Image Source: Animal New York

Using Australia and the United States as an example, there are some avenues through which these artworks can be safeguarded by law. However, since street art continues to be negatively perceived as vandalism by governments and the general public, it is often understood as an art form that occurs outside the protection of the law.

Australia

According to section 32 of the Australian Copyright Act (1968 Cth), copyright exists in an original artistic work when it is attached to, or forms part of a building. To be ‘original’, the graffiti must be more than a simple ‘tag’ – this is the distinction between graffiti and street art.

However, there are still limits to the extent Australian street artists can rely on copyright law to protect their work in public spaces. The first issue arises in the transient nature of graffiti. In other words, its tendency to be removed or painted over. Graffiti works are only suitable for copyright protection insofar as they are original works fixed in a tangible medium of expression. This presents problems to works that are routinely painted over or destroyed. Another issue arises in street art’s position within multiple spheres of law. In other words, while copyright protections may exist, why should these rights be protected when other criminal laws (property and trespass) have been transgressed?

Copyright protections for street artists are further limited by the fair dealing defences in sections 40-42 of the Copyright Act (1968 Cth). People can reproduce and disseminate an artist’s work if it is done for the purposes of research, criticism, parody, or reporting news.  Therefore, whilst Australian law might prevent influencers and companies from redistributing original works for a commercial benefit, it is not a comprehensive source of protection.

United States

Similar to Australia, the Copyright Act (1976) in the United States applies to fixed, tangible mediums, including pictorial, graphic and sculptural works. As long as the work is attached to a surface, it is ‘fixed’ enough to be granted copyright.

Also similar to Australia’s ‘fair dealing’ defences, US law entails a ‘fair use’ doctrine. This doctrine authorises the use of copyrighted material without receiving permission from the artist. Under the fair use defence, a person can redistribute street art if it is for non-commercial, educational, scientific or historical purposes.

Overall, street artists can rely on copyright law to protect their work to the extent that it fits the legal moulds outlined in laws. That is, works contained in a fixed medium (which is difficult given the transient nature of graffiti). Further, copyright laws will only be effective at protecting artworks if it is not contested by a fair dealing (Australia) or fair use (US) defence.

Street art’s uncertain legal status

Graffiti work of a man with orange hair looking suspicious with the text ‘not sure if this is graffiti or if its street art’
Image Source: Artwork posted by @Lushsux on Instagram

Street art continues to hold an uncertain legal status. Therefore, street artists can only rely on copyright law to prevent the uncredited redistribution of their work if it is perceived as legitimate and lawful art. But the very essence of most street art is that it exists creatively outside of society’s strict legal frameworks, so in order to be protected, it would lose much of its meaning and significance to artists and communities.

Top 5 places in the world to see graffiti

Graffiti can be found all over the world in all sorts of forms. However, there are some places that house extravagantly unique street murals.

Melbourne, Australia

Melbourne’s intricate laneway system is enlivened with colourful works from local and international artists. With credit to the iconic Hosier Lane, Melbourne’s urban art scene is known across the globe. You can wander these artistic streets by yourself, or join a walking tour run by local artists to get some extra background on the creators and their work.

Black and white photograph of a graffiti-ridden laneway in Melbourne
Image Source: Alice Blunden

Darwin, Australia

Another Australian city, Darwin’s Austin Lane houses enormous murals that span across once plain building walls. Since 2017, the Darwin Street Art Festival has brought vitality and colour to the city area. Before walking through the artistic laneway, you can download an app that educates you on the artists and their works. The ‘Multidimensional Man’ artwork depicted below is a stark representation of street art as culture and history. The Portrait is of Aboriginal man Hilton Garnarradj (a Gunbalanya resident) and pays tribute to Australia’s First Nations People. Here, street art is undeniably an important symbol of cultural history and national identity.

 A cream-coloured block building with an enlarged First Nations man graffitied onto its wall
‘The Multidimensional Man’ by Pete Cto aerosol mural on wall (29m x 12m) Portrait of Hilton Garnarradj / Photo: Alice Blunden

New York City, United States

New York City is the epitome of the crime or cultural creation debate. While graffiti still remains the most common form of vandalism in NYC, street art continues to thrive and add culture to the city. Many works are authorised by business owners, community groups and developers.

On the 79th St between Broadway and Amsterdam Ave, you can see one of Banksy’s most famous pieces – Hammer Boy. Usually, there is no guarantee that the artwork you see one day will be there the next. But Hammer Boy has a more eternal presence after the building owner installed plexiglass to protect it.

A silhouetted boy with a hammer graffitied onto a cream-coloured wall
Artwork by Banksy/Image Source: theartstory

Berlin, Germany

Described as ‘poetry of the city’, Berlin’s street-art scene is like an enormous open-air gallery. Starting with the Berlin Wall, graffiti practices have emanated outwards, saturating buildings with diverse expressions and oversized murals. Although the Berlin Wall came down in 1989, remnants can still be found – painted and redecorated all over the city. In this way, graffiti can hardly be considered vandalism. Instead, it emboldens Berlin’s rich cultural history; it tells a story.

A concrete post decorated with colourful butterfly graffiti
Image Source: mcflygoes88mph on Flickr

Barcelona, Spain

Barcelona’s street art scene faced a momentous setback in 2006, when the Ayuntamiento voted in a new regulation aimed at eliminating civil disturbances. To assert greater control over the city, the government declared graffiti on any public space illegal.

Street artist Zosen Bandido says:

‘Many of the museums here [in Barcelona] disregard street artists and fail to recognise the value of having living artists creating urban art right here in our neighbourhoods.’

In 2011, however, the first Open Walls Conference was held. This annual festival celebrates urban art, discussing ways in which street art can find a home within city walls. The 2011 conference provided a space for renowned street artists from different parts of the globe to create striking murals on plain building walls. Positioning graffiti within categories of art and culture rather than criminality help foster a respect and appreciation of artists’ work. Barcelona artist El Pez, whose vibrant artworks are found all over the city, says his aim is to ‘spread happiness and good vibrations to the people in the streets.’

Another innovation in Barcelona’s street art scene is an app called Wallspot. The platform allows artists to book a legal wall to paint on and aims to unite the street art community. Photographers can also sign up to take photos of the transient artworks before they are painted over by new artists. The popularity of both the Open Walls festival and the Wallspot project points to the resilience of the street art community in Barcelona.

Man crouches in the corner of a colourful street mural
Artwork by El Pez/Image Source: suitelife.com

Prague, Czech Republic

Prague’s legendary Lennon Wall is a symbol of free expression and resistance to communist-era surveillance. Unfortunately, however, the government has imposed strict surveillance measures in an effort to tackle vandalism and obscene artwork by drunken foreign tourists.

Nonetheless, millions of tourists still visit the wall every year. It retains its status as one of Prague’s leading cultural attractions. The politically fuelled artworks embody the notion that street art is more than an act of vandalism. In witness of the wall, tourists stare into the complex history of Prague, with each image holding rich cultural symbolism. After all, a picture tells a thousand words.

 A cream-coloured block building with an enlarged First Nations man graffitied onto its wall
Image Source: Martin Divíšek/EPA via The Guardian

While graffiti on the Lennon Wall remains fixed in place, its impact is anything but static. The Lennon wall’s freedom of expression story has inspired similar walls in Hong Kong during recent pro-democracy protests.

Conclusion: Creative or Criminal?

Street art forms a rich source of cultural stories that enrich our city walls and captivate the public. However, most street art continues to occupy the illegal realm. With limited legal protections for street artists, the promise of the creative city continues to be plagued by questions regarding the sustainability of creative lives. Governmental fears around urban disarray and unclean neighbourhoods perpetuate a desire to control the appearance of neighbourhoods.

The courts are reluctant to define what ‘art’ really is. Therefore, it is difficult to distinguish vandalistic graffiti practices from more elaborate street art displays. Indeed, many young taggers would believe that, for them, their illegal inscriptions constitute a form of art.

Thousands of tourists flock to admire street art across the globe. It would appear there remains a strong public interest in these artforms, even if they are considered illegal. Often, the most beautiful murals that brighten and enhance communal areas are still deemed illegal. As such, street art will retain its ambiguous position between the realms of positivity and negativity, and legality and illegality.

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