Eight Precedent-Setting Rulings from Different Parts of the World
This post explores the tension between street art, as a free and public form of expression, and the issues of copyright and intellectual property. Street art is often created on urban walls, considered temporary and informal. However, in recent years, there has been growing awareness of the need to legally protect street art from unauthorized commercial exploitation, with various legal cases highlighting the complexity of this issue.
In recent years, a significant shift has occurred: many graffiti artists have transitioned to legal work, leveraging their skills to build legitimate and profitable careers. Many cities around the world now permit murals on public walls, integrating them into the urban landscape. These changes have led to increased public recognition of street art and a growing interest in documenting and supporting these works.
This post highlights 8 precedent-setting rulings from different parts of the world (New York, Tel Aviv, Berlin, London), which serve as milestones in defining street art as a form of art protected under copyright law. These rulings emphasize that violating artists' rights can lead to compensation claims. They reflect a global trend toward recognizing street art as a creative field on par with traditional art forms. The legal precedents establish a framework for recognizing the copyright and moral rights of street artists, even when the work is created on public property or without permission.
The images in this post illustrate the unique essence and story of street art, though they are not directly related to the specific topic of the post or the legal rulings discussed.
The image depicts the artwork "My God, Help Me to Survive This Deadly Kiss" by Russian artist Dmitri Vrubel. Also known as "The Fraternal Kiss," this piece is one of the most famous artworks on the Berlin Wall. The painting portrays a "fraternal" kiss between Leonid Brezhnev, General Secretary of the Communist Party of the Soviet Union, and Erich Honecker, General Secretary of the Socialist Unity Party of East Germany. The artwork has become a cultural icon symbolizing the close yet tense relationship between the two communist nations. It is one of the main attractions at the East Side Gallery, the open-air gallery on the Berlin Wall.
Street Art - Court Ruling in Germany in 1995
After the fall of the Berlin Wall, many of the paintings created on the wall became cultural icons with significant artistic and historical value. Among the paintings were depictions of faces, political messages, and abstract art. The Federal Court dealt with the issue of legal protection for the murals created on the Berlin Wall. This ruling was highly significant and influenced how street art is perceived within copyright law.
Court Ruling
The German Federal Court ruled that the murals on the Berlin Wall constitute "personal works of individual expression." Based on this principle, the court determined that the paintings were eligible for protection under German copyright law. The decision included several important rulings:
Definition as Protected Work:
The court stated that for a work to be protected by copyright, it must be the product of personal creativity and have an individual character. The murals on the Berlin Wall met these criteria.Street Art as Copyright-Protected:
The ruling extended legal protection to street art, recognizing its cultural and artistic value. It established that street art is not excluded from copyright law simply because it is located in a public space.Preserving the Uniqueness of the Work:
The murals were recognized as unique works, not just random or temporary elements. This strengthened the status of street artists as individuals entitled to copyright over their creations.
Impact of the Court's Ruling
The German Federal Court's decision was an important milestone in several aspects:
Legal Recognition of Street Art:
The ruling expanded the definition of a protected work and acknowledged that street art, even when created in public spaces and sometimes without permission, is entitled to protection under copyright law.Strengthening the Status of Street Artists:
The decision provided German street artists with a legal means to protect their works from commercial use or vandalism.Cultural and Legal Implications:
The ruling not only recognized the artistic value of street art but also reinforced its status as an integral part of contemporary culture. It served as an inspiration for similar cases in other countries where courts were required to rule on similar issues.Restrictions on Commercial Exploitation:
Following the ruling, it was clarified that even if a work is located in a public space, its commercial exploitation requires the creator’s consent, thus reducing the possibility of copyright violations.
The 1995 ruling set an important precedent that shaped the relationship between street art and copyright law. It emphasized the cultural and artistic value of street art works and served as a foundation for further legal developments in the field, particularly in battles against unauthorized commercial exploitation of works. The recognition of the Berlin Wall murals as protected works was not only a legal step but also a move that placed street art at the forefront as a means of personal expression and part of cultural heritage.
The image shows the artwork No Man's Land by Carmen Leidner – a thought-provoking piece that addresses themes of isolation, divorce, and the complexities of boundaries. Carmen Leidner, known for her exploration of space and its symbolic implications, often deals with the relationships between people and their environments, questioning the nature of belonging and identity. The artwork is located at the East Side Gallery, the open-air gallery on the Berlin Wall.
Street Art - The German Ruling of 2007
This ruling dealt with a mural on the Berlin Wall and marked a milestone in recognizing the rights of street artists, even when their works were created illegally. The case centered around a graffiti artwork that was removed from the wall and sold for commercial purposes without the creators' knowledge or consent.
Key Points of the Ruling:
Protection from Commercial Exploitation:
The court clarified that artists are entitled to oppose commercial use of their works without their consent, even if the work was created on private or public property without permission. It was established that the mere fact that the work was created without authorization does not invalidate the artist’s copyright or moral rights.Moral Rights:
The ruling emphasized the moral rights of artists, granting them the right to object to alterations or commercial use of their works without permission, especially if it harms their honor or reputation.Balancing Property Rights with Artist's Rights:
The court had to balance the property rights of the owners (in this case, the Berlin Wall) with the copyright of the artists. The decision leaned in favor of the artists, recognizing the importance of protecting original works and the creators themselves.
Implications of the Ruling:
The ruling strengthened the position of street artists in Germany and globally. It highlighted that works of art, even when located in public spaces and created without permission, are entitled to legal protection from unfair commercial exploitation. Additionally, it set a legal precedent that respects the uniqueness and artistic effort of street artists, encouraging more serious consideration of their works both legally and culturally.
The image shows a typical piece by Banksy. The artwork Graffiti Area, also known as Guard Dog, is a mockery of the police and authorities, depicting a police officer and his poodle patrolling a designated graffiti area. The piece is located on Rivington Street in the heart of Shoreditch, London, inside an old railway tunnel. Banksy's work is considered a local masterpiece, and it has been protected by perspex for about 15 years, with crowds still gathering to see it.
Street Art - The British Ruling - Banksy in 2014
The event occurred when a tenant of a building in England removed a graffiti artwork created by Banksy on the exterior wall of the property. The tenant acted without the landlord's permission, believing the artwork might have significant economic value and sought to sell it.
The property owner, the landlord, filed a lawsuit against the tenant, claiming that the action violated the lease agreement and the physical ownership of the wall and the artwork. The lawsuit raised interesting questions about ownership of graffiti art on private property and the artist's copyright.
Court Ruling
In its ruling, the English court established several key principles:
Physical Ownership of the Artwork:
The court ruled that the graffiti artwork is part of the physical property on which it resides, and therefore belongs to the landlord, not the tenant. The tenant, who removed the artwork without permission, breached the lease agreement.Copyright Ownership:
Although the central issue in the case did not focus on copyright, the court noted that the copyright to the artwork belongs to Banksy. This is a right independent of physical ownership of the wall, emphasizing the distinction between physical property rights and intellectual property rights.
Case Implications
Separation Between Physical Ownership and Copyright:
The case highlights the distinction between owning a piece of art due to its physical location and holding the copyright, which belongs to the artist. Therefore, even though the landlord owns the wall, they cannot commercially exploit the artwork without Banksy's permission.Protection of Street Art Works:
The ruling adds an important layer of recognition to artists' rights, even when their works are located in public spaces or on privately owned walls.Lease Agreements and Property Management:
The case underscores the need for property owners to include specific clauses in lease agreements that clarify rights and obligations regarding artworks located on the property.
This case fits within the global trend of recognizing artists' rights in the field of street art. The ruling reflects the legal challenge arising from the intersection of property law, copyright, and contracts, with significant implications for other street artists, property owners, and tenants. Additionally, it illustrates the complexities of Banksy's work, as an anonymous artist. This situation presents a unique legal challenge since Banksy does not physically own his artworks but relies on copyright to protect their cultural and economic value.
This ruling represents a landmark in the English legal system regarding the relationship between graffiti art and ownership of the property on which it is located. It emphasizes the recognition of street artists' copyrights, even when the artworks are located in public or private spaces, and sharpens the importance of contracts in managing properties with street art.
The image (taken from Wikipedia) shows 5Pointz – a complex of industrial buildings in the Queens borough of New York, which became famous as a hub for street art and graffiti. For years, the location served as an "open-air gallery" where artists from all over the world came to paint on the walls of the buildings, with the approval of the property owner, Jerry Wolkoff. The area became a tourist attraction and a symbol of creativity and free artistic expression.
Street Art - The 5Pointz Ruling in 2018
The ruling on the 5Pointz street art complex is one of the most significant cases in the world of street art, symbolizing the recognition of artists' rights in the context of graffiti and street art.
In 2013, the property owner decided to demolish the buildings in order to build a luxury residential project. The artists who were active at the site attempted to stop the demolition through legal proceedings, arguing that the graffiti on the buildings was protected under the Visual Artists Rights Act (VARA), an American law that protects artworks from destruction or defacement. Despite their efforts, in 2014 the owner ordered the buildings to be painted white overnight, destroying all the artwork. This move drew widespread public criticism and was seen as an assault on New York's artistic heritage.
In 2018, the court ruled in favor of 21 artists whose works had been destroyed. Federal judge Frederic Block ruled that Jerry Wolkoff’s actions violated the VARA, as the works at 5Pointz were considered artworks with "recognized significance." The judge also noted that Wolkoff acted insensitively by destroying the works without prior notice.
Court Ruling:
The court awarded $6.7 million in damages to the artists, which was the highest amount ever awarded in such a case involving visual artists. The amount reflected both the artistic value of the destroyed works and the moral damage caused to the artists.
The 5Pointz ruling is not just a story of a conflict between artists and a property owner but also a story about the recognition of the power of street art and the understanding that it is not merely "vandalism" but an integral part of urban culture and heritage. The ruling sparked a wide public discussion about the place of art in public spaces and the need to protect it, even in a changing reality of commercialization and urban development.
In the image, one of Damien Tabb's works in Tel Aviv. Damien's world is surreal, imaginative, and he manages to achieve this in most of his works while using very few colors. Damien is one of the plaintiffs in the case before us, and during the trial, Damien passed away after battling cancer.
Street Art - The Israeli Case in 2024
In Tel Aviv, Israel, in 2024, an important ruling dealt with the rights of street artists Yonatan Kochba and the late Damian Tabak, who sued for commercial use of a mural they created without permission. The court ruled that their copyright and moral rights had been violated, emphasizing the right of artists to prevent changes to their works or harm to their reputation. This ruling is considered a milestone in protecting street artists' rights in Israel. Some of the content and topics in this case were taken directly from the court decision.
Plaintiffs' Claims:
Commercial Use:
The defendant photographed their works, made copies, and printed them on posters, canvases, concrete, or other materials. These were then made available to the public and sold commercially, including to private and business clients. The plaintiffs argued that this distribution, sale, public display, and commercial use of infringing copies violated their rights under Section 48 of the Copyright Law. Additionally, they claimed the defendant unjustly profited from their work, in bad faith and contrary to fair commercial practices.Credit Theft:
In some cases, the defendant not only failed to credit the artists but also cut and erased the artist's signature, completely removing any attribution. In some instances, the defendant took credit for the creation of the artwork. The defendant uploaded some of the works to their social media pages, presenting them as if they had been created by the defendant.Claim for Damages:
The plaintiffs sought compensation without proof of damage, according to Section 56 of the Copyright Law, for each infringement of copyright and moral rights, totaling 100,000 NIS per infringement. Considering the circumstances, they set their claim at 200,000 NIS per artist, amounting to 400,000 NIS in total.
Defendant's Claims:
No Commercial Sale:
The defendant argued that this lawsuit was baseless and without merit. They claimed to appreciate and love street art and would occasionally photograph murals during their walks in southern Tel Aviv. The defendant claimed they posted the photographs out of love for art and did not indicate that the works were for sale. Although some photos showed the works hanging in various apartments, the defendant asserted that they printed and gave these images as gifts to friends with no monetary exchange, and the images were not sold commercially.Not Works of Art, but "Graffiti Scribbles":
The defendant emphasized that they did not identify the artists because they did not know who created the works and had no way of knowing. According to the defendant, the works were merely "cute graffiti scribbles" and not real artworks. They argued that the photos of the works presented in the lawsuit were intentionally exaggerated to make the works seem "grandiose" when, in fact, they were "amateurish drawings" that were mostly no longer visible and were either faded, damaged, or completely erased.No Copyright if Artwork is in a Public Space:
The defendant argued that the photos and their use were permitted according to the Copyright Law, citing Section 23 of the law, which allows for the photography, drawing, or visual representation of architectural works, sculptures, or applied art if the work is permanently located in a public space. The defendant contended that since the murals were in public spaces, no infringement had occurred.Graffiti is Vandalism, Therefore Public Domain:
The defendant argued that graffiti was an illegal act of vandalism and that street artists do not ask property owners for permission to paint, fully aware that creating graffiti in public space turns it into public property. The defendant further emphasized that the plaintiffs were not well-known artists, but rather "amateurs" who sought to profit unjustly from the defendant's actions.
Court Ruling:
"Street art, like any other form of art, can indeed embody significant creative investment, high technical skill, and unique personal expression by the artist. The fact that the work is located in public space, rather than in a museum or gallery, does not diminish its artistic value or the need to protect the creator's rights."
Judge Ron Goldstein ruled that the plaintiffs were entitled to enforce their rights and receive compensation for the violation. The defendant was ordered to pay 130,000 NIS to the two artists together. Additionally, the defendant was ordered to pay 25,000 NIS in attorney fees and 7,500 NIS in court costs.
Street Art - 3 Additional Court Rulings Shaping the Rules
Street art, often seen as a creative rebellion, is increasingly at the center of legal debates. Three important rulings from Paris, the U.S., and the U.K paint a clear picture of street artists' struggle to protect their rights against powerful commercial forces.
Vhils v. France – Paris, France:
Portuguese artist Vhils, known for his unique sculptural techniques on urban walls, sued a commercial company for using his works without permission in a local advertisement. The court in France ruled in his favor, stating that even works in the public space are protected by copyright, and commercial use cannot occur without the artist's consent.
Revok v. H&M – USA:
Fashion retailer H&M used a graffiti piece by artist Revok in an advertisement without permission. The case sparked a debate on whether works created illegally can be protected by law. While the case was settled out of court, it sent a clear message: street artists can claim their rights even for works created unlawfully.
Rime v. Moschino – USA:
The fashion brand Moschino incorporated elements of graffiti works by artist Rime into its luxury collection. The court ruled in favor of the artist, emphasizing that street art deserves legal protection against commercial exploitation.
The Common Link
These three rulings highlight that the public space is no excuse for exploiting street art for commercial purposes. Courts worldwide are beginning to recognize the special status of these works as a bridge between personal artistic expression and street culture that enriches urban life. Street art is not only a creative outlet but also a reminder of the respect owed to its creators. These rulings mark the way toward increasing recognition of street artists' rights in both legal and cultural spheres.
