The book looks at how copyright laws are perceived within the graffiti and street art subcultures, and how artists and writers view certain creative aspects of their own practice. By drawing on the author’s ethnographic research and fieldwork, the book gives voice to the main actors of these communities and highlights their feelings and opinions towards issues which until recently they have often felt far from their everyday life and practice. This book, in other words, brings the ‘voice from the street’ into the debate over the legal (and non-legal) protection of street art and graffiti. The monograph also touches on related and complementary issues, such as the ‘gallerisation’ and economic exploitation of these forms of art (e.g. via merchandising) and the curious similarities between the graffiti and advertising worlds. The book includes inter-disciplinary and multi-disciplinary perspectives, showing how different disciplines can interact. The ethnographic research carried out by the author gives the monograph a strong empirical touch, thus providing insight and perspectives from the street art and graffiti subcultures.

This chapter examines the application of the principles underlying artistic freedom in the public space, as well as graffiti and street art. To which extent are States obliged to promote, protect or safeguard artistic freedom when clashing with public interests, public order or public morality standards? Does the qualification ‘illicit’ or ‘commissioned’ play a role in preserving artistic freedom? And do these obligations go as far as safeguarding the individual artist’s right to artistic freedom in case of unpopular, controversial or offensive art and performances in the public space – or urban planning considerations, as in the case of the ‘La Demeure du Chaos’ (Abode of Chaos)? Furthermore, the chapter discusses the question of hateful, racist, sexist, misogynous or homophobic art in the public space, epsecially in light of State obligations to raise awareness and eliminate stereotyping. Last, drawing on numerous case studies such as the Great Wall of Los Angeles and murals painted in post-aparheid South Africa, the chapter explores potential obligations to preserve and safeguard street art – and artists’ frededom – especially in the case of large murals reflective of broad community participation and those that reflect human rights ideals.

In this chapter, I argue that while the scope of copyright protection of graffiti and street art may be on the whole, fairly easily ascertainable and may offer a desirable level of protection to their authors, the rights of the public with respect to graffiti and street art remain fragmented, somewhat unclear and likely too limited. This finding gives a sobering account of the extent to which Canadian copyright law succeeds in adequately addressing competing interests, such as where allowances for communication and access between the graffiti or street artist, their work of art and the public should be at their highest. I refer to “graffiti” for writings depicted in public spaces and to “street art” as a more general term encompassing graffiti and any other form of visual art (drawing, painting, sculpture, structure, object) located in public spaces. I refer to neither graffiti or street art with a connotation of legality or illegality and I will specifically refer to their (il)legality as the context may dictate from time to time.

In January 2018, Jason REVOK William’s lawyer sent to H&M, the Swedish clothing company, a cease-and-desist letter. 1 By writing to the brand’s representatives, the lawyer was lamenting the unauthorized use of one of REVOK’s iconic pieces in H&M’s recent ad-campaign. In the photoshoot, a graffiti that REVOK illegally painted on a wall of a handball court in Williamsburg, Brooklyn, appeared as a backdrop. The LA based artist requested H&M to stop sharing the photoshoot on social media and demanded compensation. H&M rejected REVOK’s requests and refused to settle. In a surprising turn of event, the company filed a lawsuit against the artist claiming that the illegal nature of his work excludes it from copyright protection. 2 After public backlash, H&M withdrew the lawsuit and settled the dispute out of court.

Germany has a vivid and thriving street art and graffiti scene. 1 Its beginnings can be traced back to the late 1970ies, early 1980ies when hip hop culture became increasingly popular throughout Europe. 2 The Bavarian capital Munich can be seen as the cradle of graffiti and street art in Germany3 though all large cities, such as Frankfurt, Cologne Stuttgart and Leipzig, are all hubs for street art and host interesting art works and active crews. Berlin, of course, has to be mentioned in this context as Germany’s prime location for street art and graffiti attracting many visitors from around the globe. 4 But also, from a copyright perspective which of course is the focus of this chapter, Berlin’s esteem is also unrivalled to other German cities. Many cases which discuss the copyright aspects of street art relate to the city’s most famous canvas: The Berlin Wall.

The airing of the documentary Style Wars on public television in 1984 was a seminal moment in the adoption of hip-hop style art by urban youth in Aotearoa New Zealand, particularly young M?ori and Pasifika men in Auckland and Wellington. Today, non-commissioned art is not the preserve of a specific ethnic or cultural group, indeed, a research paper written for the Ministry of Justice found “little evidence to suggest that graffiti writers are a distinct subgroup among young people”. Askew One (Elliot O’Donnell) is probably the best-known Auckland street artist. The works of BMD, the most prominent Wellington street artists, adorn many of the capital’s walls. Other often-encountered pseudonyms include “Component, Eeks, Ghstie and Yelz”. Kerryn Pollock observes: “Street art is male-dominated, but some women have gained recognition for their work, including Diva, Misery (Tanja Thompson), Flox (Hayley King), Erin Forsyth, Xoe Hall and Mica Still.” Yarn bombing is also common, notably in Wellington, and, because it is perceived as feminine and non-threatening, widely accepted across generations.

Art and drawings on walls have existed for long time in Italy. It is an anthropological phenomenon whose millennial existence is confirmed by the rock paintings in the Camonica Valley in North Italy as well as the engravings on the Colosseum in Rome and on the walls of Pompeii.

The first Italian publications documenting art in the street are the works “Graffiti a New York” published in 1978 by Andrea Nelli, a university dissertation offering a clear and detailed analysis of the thriving New York writing culture of that era; and ‘Arte di Frontiera’ by art critic and researcher Francesca Alinovi, published in 1982 in the Flash Art magazine, and documenting the kids with spraycans from the poverty-stricken neighbourhoods of the city, about their impudence, their energy, and the way a new lettering-based art was created and developing fast. In 1984, the (then) Gallery of Modern Art in Bologna completes the innovative research by Alinovi (who in the meantime had been killed in a mysterious murder case) and organises ‘New York Graffiti’, one of the first European exhibitions entirely dedicated to graffiti artists like Futura 2000, Lady Pink, Daze and Toxic.

Currently, many cities in Colombia are starting to embrace and promote urban art even though in the recent past the police-or even worse, social-cleansing groups-have persecuted graffiti and street art artists. However, cities like Barranquilla, Valledupar, Medellin, Cali, Bucaramanga, Pereira, and Ibague have welcomed graffiti, designating places, mainly walls, for artists to express themselves via graffiti and street art. Fairs, seminars, and museum exhibitions of urban art are being held in various Colombian cities and these art forms are even boosting local tourism. Amidst this growing collection of street art, one question remains: what protection does street art-particularly lettering-based graffiti-enjoy and what kind of rights do their artists hold over them?

Graffiti and street art is ubiquitous – it may even be one of the fastest expanding artistic movements. 1 According to a Dutch daily evening newspaper, the presence of graffiti and street art in Amsterdam and Rotterdam has increased significantly between 2014 and 2016. The number of square meters of graffiti on metro trains in Amsterdam alone rose by 50 % (from 6.000 to 9.000 square meters) during these years. 2 In particular Amsterdam has become one of the most influential graffiti and street art scenes in the world:3 it actively hosts exhibitions of graffiti and street art. 4 In its Street Art Museum Amsterdam, 5 an advanced collection of Dutch graffiti and street artworks is preserved. But also in the very south of the Netherlands, the city of Heerlen features a wide collection of colourful graffiti artworks in the city centre, whereby the municipality pursues a conscious and respecting policy towards street and urban art. 6 One of the most famous graffiti and street artists from the Netherlands is Ces53. Whilst Ces53 started as a graffiti artist, he now also makes sculptures, as a more elaborated form of street art. 7 Another Dutch painter and street artist is Super A, who is known for realistic paintings of a dreamy and surreal atmosphere.

Street art in Australia is not only an important part of urban Australian culture but also a serious commercial business and a part of government urban planning in metropolitan areas. It is both legally recognised and encouraged by sophisticated government policies but those policies have surprisingly little to say directly about copyright. Graffiti is usually defined as unlawful because it is done on public or private property without permission and there is no general legal freedom to paint on public or private property surfaces without express or implied permission. It is discouraged by not enjoying legal protection and being the subject of considerable adverse commentary.

In this chapter I expand on whether and to what extent UK copyright law is capable of regulating street and graffiti art. There has been thus far no reported decision by British courts on copyright protection of these forms of art. This is also probably due to the fact that disputes are often settled out-of-court before a complaint is filed or a decision is reached. After all, this seems to be the rule in most cases regarding art. The chapter focuses on the following selected aspects: (i) requirements for copyright protection; (ii) authorship and ownership; (iii) moral rights; (iv) freedom of panorama exception; and (v) illegally created works.

This chapter will investigate to what extent certain US copyright and moral right laws are capable of protecting these forms of art, by referring in particular to paintings on walls and other urban surfaces. It will focus on the following selected aspects: (i) subject matter and requirements for protection; (ii) moral rights, with a particular focus on the integrity right; and (iii) illegal artworks. There have been so far a few court decisions on these issues, with judges coming up with important findings that could have a positive influence on the further development and recognition of these forms of art.