Street Art and Art Law: from Milan to New York

Italian laws on copyright, cultural heritage and landscape

Drawings, murals, sculptures, and installations, which in the past were considered acts of vandalism, are now recognized and appreciated as works of art. Pieces such as those by Bansky, Os Gemeos, and JR,? can now be exhibited in museums and even sold or auctioned with increasing values.

In Italy, street art is protected by Copyright Law (No. 633 of 22 April 1941), on the basis of which all creative intellectual works are recognized and granted with (patrimonial) rights for the author. This means their work can only be economically exploited with their consent. It also recognizes their (moral) right to oppose to any use of their work that might be harmful to their honor and reputation.

Some particular works, due to their special artistic, historical, archaeological, or ethno-anthropological interest, may also be protected as cultural assets, pursuant to the Italian Code of Cultural Heritage and Landscape (Legislative Decree No. 42 of 22 January 2004).?Protection attributed to such artworks is enhanced, as restrictions apply to their relocation, removal, reproduction and use regardless of the consent of the owner/author.

The works of street art expressly protected as cultural assets are still few (e.g. the artwork 'Tuttomondo', created by Keith Haring on the back wall of the convent of the Church of St. Anthony in Pisa in 1989).?

Milan (Italy): a recent decision protecting street art, the "Leoncavallo graffiti”

Recently, the Superintendence of Archaeology, Fine Arts and Landscape of the Metropolitan City of Milan, in a note dated May 9, 2023, recognized that certain paintings made in the Leoncavallo social centre in Milan, are to be protected as cultural heritage pursuant to Articles 11 and 50 of the Italian Cultural Heritage Code as they 'are known to the public and experts and are subject to valorization at several levels'.

As a consequence, the murals created at Leoncavallo 'not only cannot be defaced or damaged, but they also cannot be detached, and by extension destroyed, without the authorization of the Superintendency'.

A comparative perspective: what is going on in the United States?

In the United States, graffiti may be protected by copyright if it is a creative and permanent work. But not all graffiti meets the threshold. Mere words and short phrases, no matter how creatively painted, are not copyrightable. Even graffiti fonts such as the balloon-like typeface ubiquitous on subway walls aren’t copyrightable because, in the US, no typefaces are.

And just because a graffiti artist can copyright their work doesn’t mean they should. In some US jurisdictions, creating graffiti can result in being charged with a felony for property damage. This means graffiti artists are often forced into a bizarre quandary – they can protect themselves or their art, but not both. In fact, in some US municipalities, graffiti is penalized even where no property damage occurred. In Portland and Detroit, for example, property owners cannot let artists graffiti their walls unless the owners first get a permit.

But in the end, going the copyright route may be worth it: in New York, graffiti can constitute a Class D felony resulting in a $5,000 fine. But in 2020, street artists who had graffitied a New York warehouse known as the 5Poitnz complex won a case against developers who painted over their graffiti. They were awarded $6.75 million.

Conclusions

Both Italy and the United States offer protection to graffiti, with Italy taking a step further in elevating protection for those graffiti deemed of special interest for the country's artistic heritage.

However, these protections should always be carefully analyzed, as they may entail unwanted consequences for the author or the owner.

A graffiti may also trigger criminal charges, as felonies for property damage.

Therefore, before thinking about purchasing, trading, or even creating such an artwork, we strongly suggest obtaining specific legal advice as to the legal framework applicable to the artwork itself, the author and prospective owners.