“Street heart”: urban murals as common goods

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Perfection of the lines, softness of the colours, harmony of the shapes. You are passionate for art, you are in Italy and this is precisely what you are looking for.

Anyway, that’s not all about Raffaello and Michelangelo. And it’s not all about museums. Life goes on and so art does. And that’s why in this very moment we are facing the new phenomenon of street art.

 

First things first. What is street art?

The expression is generally used to refer to those artworks which are realised in urban contexts, open to the access of the general public and, normally, without authorisation. Born in the 70’s in New York City, at its very beginning, street art only consisted in simple signatures and words (what is now called “graffiti”). This was a way for Big Apple’s cool kids (and a certain “Taki”[1] was the coolest apparently) to identify themselves and being somehow recognisable in that chaotic city. During the time, the phenomenon spread to Europe, further developing and focusing on images rather than words.  For this purpose, street artists employed a number of techniques, including spray cans, brushes and palettes.

All good up to this point. Still, what about Italy? Interestingly enough, also our traditional country has a role to play in this game. And this role would be massive, according to someone. Precisely, the “Italian Taki” was a guy, called Fernando de Filippi, who, in the same period, started attaching his politically engaged posters on the walls of Milan and other Italian and European metropolis[2].

Keith Haring, first, then the new generation of street artists have worked intensively in Italy. Their works, the ones survived, are displayed in Rome, Milan, Bologna, Naples, and in many other minor towns.

Don’t be surprised Raffaello lover. As the same artist used to write “ Contradictions are everywhere”.

 

Street art: a copyrightable work?

The main issue when it comes to street art[3] is assessing whether or not it would be protectable under Copyright law[4]. In fact, the ephemeral nature of the work and the originality threshold imposed might both represent an obstacle.

In Italy, the relevant provisions to be considered are included in the Law 22.04.1941 no. 633 (Italian Copyright law, hereinafter ICL). Following Art. 1 of the mentioned law, protection is granted to all the creative intellectual works. Also, it is given “no matter the way and the type of expression”. Eventually, article 2 no. 4 ICL includes artistic creations in its non-exhaustive list of copyrightable works.

Therefore, in Italy, differently from other countries, there is no codified fixation requirement. This means that a non-durable work of art is likely to be protected in our legal system.

Plus, even considering the requirement as existent, no issues would arise for street art given that one thing is the need for a tangible embodiment of the work and another, very different, is its non-alterable nature. As the Court pointed out in Creative Records[5], “while some works are intrinsically impermanent, others have only an ephemeral nature” and protection can be denied only in the first of these cases.

In the same way, moving to the originality standard, no problems arise. The notion of creativity, in fact, has always been interpreted extensively by the Italian doctrine and jurisprudence, observing that the presence of a “creative act”[6], even a minimum one, would be enough for protection to be granted[7]. Even tags[8], consisting in mere words, could be protectable[9] due to their peculiar lettering style[10].

So, what’s the matter with street art?

The main issue with this kind of art, which is also its key feature, is the fact it is normally non-authorised.

This is precisely where our fairy tail finishes and the list of criminal offences starts.

In Italy the relevant provisions to look at are article 639 Criminal Code titled “Defacement or foul of someone else goods” (Deturpamento ed imbrattamento di cose altrui) and article 635 Criminal Code on “Damaging” (Danneggiamento). Both the articles are likely to be applied to street art. And in fact, recently, the Tribunal of Bologna, condemned the street artist “AliCè”[11] for the infringement of art 639 Criminal Code, given that “neither the condition of the walls nor the international reputation of the artist were likely to limit the liability”[12].

The question, in this sense, is whether or not a behaviour constituting a criminal offence can also originate a somehow protectable work[13]. And the answer, given by Italian Copyright law, is a positive one, given that our system is neutral and the lawfulness of the work is not regarded as a condition for the grant of protection[14].

However, as we will see, although not affecting its protactability, the circumstance street art attaches to someone else walls might pose other questions to the interpreter (below).

 

Street art as common goods

In particular, one has to strike a balance between the right of the artist on his creation and the property right of the owner of the building. Our thesis moves from this premise and criticises the approach generally taken by the doctrine. This results, in fact, in the erroneous conviction that the ownership of the artworks is for the owner of the embodiment, who will be able to dispose of  and even destruct the artistic creation[15].

However this approach does not persuade. In fact, not only it doesn’t take into account the right of integrity of the artist but, mainly, it does not consider that this kind of artworks is, in most of the cases, removable[16]. With the result that, in this scenario, the relationship between the owner of the wall and the artwork will not be comparable to the one existing between the painting and its canvas but, rather, between the painting and the wall it attaches to. Therefore, unless a sell and purchase agreement took place, the owner of the wall does not seem to have any right over the artwork.

However, in our view, this approach is not methodologically correct, as it does not provide a real answer to the issue of the property of the works and does not take into account the peculiarities of non authorized urban art.

On the contrary[17], by taking the distance from the typical private/ public property dichotomy, the works of street art should be considered as “common goods”; in other words, according to the definition given by the Rodotà Commission, those goods constituting “the expressions of utilities functional to the exercise of fundamental rights and the free development of the person” (“cose che esprimono utilità funzionali all’esercizio dei diritti fondamentali nonché al libero sviluppo della persona” )[18].

A similar theory, based on a Constitutional notion of property, finds its reason in the social and cultural role played by art for the society[19]. This cultural value, we argue, is particularly high in the case of street art, which, by its own nature, is intrinsically related to the context it is conceived in.

Specifically, there would be a twofold relationship between the artwork and the community, with each of the actors reciprocally influencing the other.

On one side, as the artist Stilk notices, “street art reacts to the context[20]. Let’s take for example the famous San Gennaro of Naples, reproducing an religious icon of the city, or also, in the same area, that artwork from Banksy representing a saint with a gun, expression of the artist attempt to summarise the contradictions of the city. Indeed, they both belong to the community they live in.

Also, often, street artists deliberately employ elements of the building as a part of their creation. In this sense, the context materially contributes to the final work, with the result that a simple window might become the opened mouth of a terrible monster[21], an apse a truly original kite and even a pre-existent artwork can be the basis for a new one[22].

On the other side, street art does influence – incredibly – the community it attaches to, often constituting a means for improving a depressed area. In Italy, a good example is provided by an interesting project,  “Big City Life”, recently developed in the area of Tor Marancia[23] in Rome and involving the participation of 20 international artists with the purpose of decorating – and bringing to life – the buildings of this suburban area.

Interestingly, sometimes it is the same community, and not the local authorities, to independently promote and finance similar initiatives.

 

How would it work?

Recognising the common good nature of street art is the first step for shaping an adequate legal solution. In fact, the consequence of this approach is the need for the adoption of a different notion of ownership, to be conceived in terms of stewardship rather than property[24].

This is particularly interesting in the case of removal of the work from his original physical support. Who is entitled to remove the work? Is there any notification obligation over the owner of the physical support, as in the US VARA regulation or not?

In our opinion, this choice might be granted to a public administrative authority, which could be entitled to take any decisions regarding the artistic value of the work, the possibility to remove or to destroy the work itself or even to dislocate into another place, in order to ensure the preservation of the work, where its artistic and cultural values are recognized.

In Italy, this administrative role would be played by the “Superintendence of Cultural Heritage” (Soprintendenza per i beni culturali), assisted, for this purpose, from a commission of experts and entitled to any relevant decisions. In particular, in the case a conflict between the artist and the owner of the building arises, the latter shall communicate to the Authority his intention of destroying the work[25]. Then, together with the Commission, the Superintendence, within (for example and as a proposal) 30 days maximum, will decide whether to authorise the destruction of the work or financing its removal, in order to promote its safeguard.

Such a solution would be beneficial for all of the involved parties.

First of all, when compared to the model provided under the VARA[26] in the US, this system is particularly beneficial to the owner of the building. In fact, he would not be imposed anymore transactional costs related to the excessive burden of sending a notification to the artist, being sufficient the communication to the local Authority of his intention to destruct or remove the artwork.

In the same way, the artist, often operating anonymously or under pseudonymous, would be given the opportunity of protecting his right without having to disclose his identity. The main benefit would obviously be for the community. In fact, the connection existing between street art and its context makes the adoption of a civil code based approach, according the full ownership of the artwork to the owner of the building, particularly risky for its cultural value.

Similarly, leaving the protection of the work to the intention of the artist, by the instrument of moral rights, might not be sufficient for its safeguard. In fact, apart from enjoying a weaker position, the same artists might not be interested in protecting their work[27], preferring to accept the risks connected with its ephemeral nature. Differently, the solution of attributing to a specific Authority the decisions over street art is more likely to effectively guarantee the collective access to these works and to preserve the cultural heritage of the State. Moreover, a centralised decision-making system in this context, if adequately supported, would have the benefit of ensuring quicker, objective and impartial decisions, contributing in the same time to the development of good practices in the field.

In conclusion, all the players may have an advantage by this solution (artists, owners of the building, citizens, the State).

More issues, however, are yet to be solved. And in fact, an adequate administrative body has to be established or, where already existing, supported by a Commission of experts. Also, a good balance between the safeguard of the artistic work and the artist integrity right has to be found. In particular, one question in this sense will be determining those cases, if any, where the photographic reproduction of the work can be considered sufficient for its preservation.

This is just a proposal, not necessarily a solution and a starting point of discussion, not only in Italy.

 

 

[1] For more information see https://en.wikipedia.org/wiki/TAKI_183 .

[2]  See A. Riva La Street Art? L’ha inventata Ferdinando de Filippi. Quarant’anni fa. (2015) http://www.italianfactory.info/portale/index.php/2015/03/la-street-art-lha-inventata-fernando-de-filippi-quarantanni-fa/

[3] See C.Y.N. Smith, Community Rights to Public Art, 90 St. John’s Law Review 369, 371 (2016): “For the purpose of this Article, an appropriate definition of ‘public art’ is art in any media intended and displayed in the public domain, usually outside or in public buildings and accessible to all persons. ‘Community’ is defined as ‘the people with common interests living in a particular area’”; see also P.N. Salib, The Law of Banksy: Who Owns Street Art?, 82 Univ. Ch. L. Rev. 2298 (2015); E. Bonadio Copyright protection of street art and graffiti under UK law, Intellectual Property Quarterly (2017).

[4] No matters arise for protectability latu sensu, given that our system is an open list one. In this sense, see for instance Cass. July 19, 1990, no. 7397, and Court of Catania, October 1, 2007, in AIDA 2008, 738 (where protection was given to geographical charts).

[5] See C. Cosentino “La tutela delle opere di Street art tra diritto d’autore e regole proproetarie, to be published in Rivista Critica del Diritto Privato (2017).

[6] See Court of Torino, May 25, 2009, in AIDA 2010, 639; Z. Algardi, Considerazioni sul plagio dell’opera scientifica, in AIDA, 1972, 460, and Court of Torino, May 27, 2011, in dejure.giuffre.it.

[7] Furthermore, the same idea might be at the basis of different expressions and all of these shall be deemed as protectable. See Cass., November 28, 2011, no. 25173, in Foro it., 2012, I, 74 and Court of Bologna, May 9, 2007, in AIDA, 2010, 639.

[8] For a definition see https://www.urbandictionary.com/define.php?term=Tagging .

[9] This is possible considering them as artistic works rather than literary works. See J. Hughes, Size Matters (or Should) in CopyrightLaw, 74 Forham L. Rev. 575, 583 (2005).

[10] See C. Lerman, Protecting Artistic Vandalism: Graffiti and Copyright Law, 2 NYU J. Intell. Prop. & Ent. L. 295, 308 (2012). A similar conclusion can be reached on the basis fonts are protectable .

[11] Court of Bologna, February 15, 2016, no. 674 (Alicè case), unpublished.

[12] A different outcome was reached in Cass. Pen., April 5, 2016 no. 16371 (“Manu Invisibile” case). In this context in fact the Court dismissed the claim against the artist basing on those same two elements not considered as relevant in the Alicè case.

[13] This is not possible in the UK and the US, because of the “clean hands doctrine”. See Primeau v. Granfteld, 193 F. 911, 912 (2d Cir. 1911) and A.P. Herbert, Uncommon Law, 1st ed., Methuen, 1935.

[14] P. Greco – P. Vercellone, I diritti sulle opere dell’ingegno, in Tratt. dir. civ. di Vassalli, Torino, 1974, 52 ss..; App. Roma 10 ottobre 1957, IDA 58, 590; Pret. Bologna 20 aprile 1971, Giust. civ. 71, 694.

[15] In this sense C. Agostini, Street Art e diritto: il caso di Yulier P. e la normativa italiana, 29 settembre 2017, www.replegal.it

[16] In Italy these interventions, due to the damages they might casuse, have to be previously authorised; cfr. art. 50 del Codice dei beni culturali: “È vietato, senza l’autorizzazione del soprintendente, disporre ed eseguire il distacco di affreschi, stemmi, graffiti, lapidi, iscrizioni, tabernacoli ed altri elementi decorativi di edifici, esposti o non alla pubblica vista”.

[17] G.M. Riccio, Una modesta proposta per la street art, in Il Lavoro culturale, 1 giugno 2017.

[18] S. Rodotà, Il terribile diritto. Studi sulla proprietà privata e i beni comuni, Bologna, 2013, 465 ss.; M.R. Marella, Il diritto dei beni comuni. Un invito alla discussione, in Riv. crit. Dir. priv., 2011, 103 ss.Commissione Rodotà – per la modifica delle norme del codice civile in materia di beni pubblici (14 giugno 2007) – Proposta di articolato, Ministero della Giustizia.

[19] J. Sax, Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures (Ann Arbor: University of

Michigan Press, 1999), p.6.; A.M. Honoré, “Ownership” in A.G. Guest (ed.), Oxford Essays in Jurisprudence (London, New York: Oxford UniversityPress,1961); Pound, “The Law of Property and Recent Juristic Thought” (1939) 25 American Bar Association Journal993, 997.

[20] D. Lynskey Street artist Stilk:”I felt invisible and it was my way to showing out I’m here” https://www.theguardian.com/artanddesign/2015/aug/11/street-artist-stik-interview

[21]See the artworks by Blu http://napoli.repubblica.it/cronaca/2016/03/04/foto/un_internato_sull_ex_opg_occupato_la_street_art_di_blu-134761713/1/#1

[22] See “San Gennaro” by Jorit and “Saint with a Gun” by Bansky.

[23]Find more details at the following link http://www.bigcitylife.it

[24] T. Cheng – Davies A work of art is not just a barrel of pork: the relationship between private property rights, moral rights doctrine and the preservation of cultural heritage in Intellectual Property Quarterly (2016).

[25] This communication might be given by any means, even a simple e-mail. As reported also in the text below, the choice of not notifying to a public authority, instead of to the artist, could have the advantage of not forcing the artist, who often works under anonymity, to reveal his identity, exposing himself to the risk of penalties.

[26] For a criticism of the provisions D. Burton, Artists’ Moral Rights: Controversy and the Visual Artists Rights Act, 48 S.M.U. L. Rev. 639, 642 (1995). D.S. Ciolino, Moral Rights and Real Obligations: A Property-Law Framework for the Protection of Authors’ Moral Rights, 69 Tul. L. Rev. 935, 938 (1995). See also J. Lipton, Moral Rights and Supernatural Fiction: Authorial Dignity and the New Moral Rights Agenda, 21 Fordham IP, Media & Ent. L. J., 537, 539 (2011) and  E. Damich, The Visual Artists Rights Act of 1990: Toward a Federal System of Moral Rights Protection for Visual Art, 39 Cath. U. L. Rev. 945, 946 (1990).

[27] This was what recently happened in Bologna, where the artist Blu opposed the relocation of its artworks in a museum, for the exhibition organised by the association Genus Bononiae. Consequently, the artist preferred to destroy its own artworks rather than closing them in a museum. See M. Smargiassi, Bologna, Blu cancella tutti i suoi murales: “No alla street art privatizzata”, in La Repubblica, 3 dicembre 2016).

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