[Guest post] Here we draw again: the never-ending debate around street art and its removal

The IPKat is pleased to host the following guest post by Federica Pezza (Hogan Lovells) on copyright protection of street art and the consequences of unauthorised destruction thereof. Here's what Federica writes:

Here we draw again: the never-ending debate around street art and its removal

by Federica Pezza

Spain, February 2021. This is a story about rap, graffiti and law. And no, you are not meant to spot the odd one out.

We are in Barcelona, elections are approaching, street artists paint and authorities whitewash. Same old story? Possibly. But this time with music in the background and a freedom-of-expression-special-vibe.

Coming to the merits, last Sunday, Spanish artist Roc Blackblock reproduced on one of the walls of the Plaça de les Tres Xemeneias the face of the king emeritus surrounded by phrases in support of the controversial rapper Hasél, convicted of glorifying terrorism and insulting the crown. Quite interestingly, this work had been authorised by the relevant bodies. Still, less than 24 hours later, Blackblock’s graffiti was erased by a municipal cleaning team. Then, the City Council apologised for its mistake and asked the author of the graffiti to repaint it.

Roc Blackblock's work

Rap and freedom of speech aside, this story is interesting as it gives to us the opportunity to consider the delicate question of street art. Is it protectable? And, if so, how about its destruction?

Protectability of street art under Spanish law

In this respect, the relevant provision to look at in Spain is Art. 1 of Ley 43/1994 of 30 December (“Ley de Propriedad Intelectual” or “LPI”) according to which protection is granted to “all original creations” (“todas las creaciones originales”). Also, in Spain (as in other civil law countries), protection is granted irrespective of the way and type of expression (“expresadas por cualquier medio o soporte”) and no fixation is required (i.e. also non-durable and transient works can be protected). In other words, under Spanish law, graffiti are protected regardless of their temporary character or of their support. Plus, aesthetic neutrality applies: that is to say, they are protected no matter of how ‘ugly’ they might look.

A different question is the unauthorised character of street art and of whether or not this might represent a limit to the scope of protection. On this point, artworks are protectable independently of their legal or illegal origin. In Spain, such conclusion is based on Article 20 of the Spanish Constitution, promoting the right and freedom of artistic creation, and the absence of a specific provision on this point. Yet, protection of graffiti does not prevent that these might be regarded as a criminal offence - and therefore punished under Spanish Criminal law. In this respect, Spanish courts tend to distinguish between mere tarnishment (“deslucimiento”) and infringing damage (“delito de daños) (see, among the others, Judgment of the Provincial Court of Guadalajara of 11 May 2017 (EDJ 2017/121532), qualifying as actual damage the act of painting a motorway noise barrier).

Kat mural in Zaragoza

Street art and whitewashing: the current legal framework

Yet, one thing is abstract protectability and another, very different, is the possibility for the author to oppose the destruction of their artwork. The question is crucial when it comes to street art, due to the need to also take into account the right of the owner of the wall.

Indeed, increasingly often we hear of artists complaining for the destruction of their works. A good example in Spain is represented by the well know “Todo es Felicidà”, the iconic graffiti painted by Jack Babiloni in Madrid and whitewashed in 2016 by order of the Spanish Commission of Cultural Heritage. We also refer to the recent case of the “Boa Mistura” artistic-collective in Getafe, who were asked to remove their work by the architects of the building to which it was attached.

In this sense, the US Visual Artists Rights Act (VARA), which expressly regulates this aspect at its section 106 (d) (1) (B), attributes to the artist the specific right to “prevent any destruction of a work of recognised nature”. Applying this provision, in the famous 5Pointz judgment [Katpost here; 1709 Blog here], the US District Court for the Eastern District of New York ruled in favour 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.

However, at this stage, similar rulings are far from being adopted in Europe. Indeed, 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”) and national implementations thereof. In Spain, the relevant provision to look at is Article 14.4 LPI which, in line with Berne, states that this right is infringed not only by the deformation, alteration or modification of a work, but also by any "attack against it that would be prejudicial to its legitimate interests or detrimental to its reputation". In this respect, one of the more relevant decisions concerning street-art in this country is the ruling of 6 November 2006 of the Tribunal Supremo of Madrid in case no. 1082/2006 confirming that, in principle, the demolition of the wall on which the work is reproduced may constitute an infringement of the author's moral rights (but excluding it in the specific case “in view of the circumstances”- i.e. the poor conditions of the building). Quite interestingly, in its decision, the Tribunal expressly took into account the temporary character of street art, somehow implying that this would justify possible limitations to the scope of protection (“dada las características de la obra… no nace con vocación de perennidad, sino con una vida efímera”).

Conclusion

In short, under the current legal framework the question of street art, and in particular of the existence of a right for the artist to prevent the destruction of its work, is yet to be settled. Indeed, this query is even trickier in circumstances like those at hand, where this already complex issue of overlaps with the protection of freedom of expression and other political decisions. In all this, disputes concerning the destruction of graffiti are getting more frequent and likely also European courts will soon have to address them in their rulings.