Banksy and Intellectual Property: Can Street Art Be Protected or Criminal?

Street Art: From Prehistoric Petroglyphs to Urban Spaces

Street art, beyond being a mere visual expression in urban spaces, is a cultural manifestation deeply rooted in human history. From prehistoric petroglyphs to the wall inscriptions of Ancient Rome and Classical Greece, man has used walls as a canvas for messages, narratives and symbols that transcend his own time. The word graffiti comes from the Greek graphein, meaning “to write”, which reinforces the idea that this practice is one of the oldest forms of communication and artistic expression.

Throughout the 20th century, graffiti and street art acquired a contentious nuance, becoming a tool of resistance, protest and social vindication. During the 1970s, New York City witnessed the rise of this artistic manifestation, with anonymous artists using aerosols to leave their mark on train cars and abandoned buildings. What was once considered vandalism without artistic value is now found in museums and private collections, with pieces fetching exorbitant sums at auction. This change in the perception of street art has given rise to a series of legal conflicts, in which the rights of the artists, the ownership of the works and the regulations governing their commercialization and preservation are debated.

The Case for Street Art Legal Protection

The question of whether street art can receive legal protection becomes even more relevant when one considers the value these unauthorized works acquire once they are discovered, photographed and sold. For example, Banksy's art has an undeniable commercial appeal, with pieces fetching tens of millions of dollars at auction. On the other, the fact that these works are created without permission creates a tension between their illicit nature and their eventual artistic recognition. This dilemma raises profound questions about ownership, copyright and whether a work created on someone else's property can be considered protected under current law.

This issue is of growing importance in the current discussion on intellectual property, urban art and cultural capital. As street art gains greater recognition and economic value, it challenges traditional notions of legal protection. Should artists like Banksy, who create without the consent of the owners of the spaces, retain ownership over their works? And if so, how should the law balance the rights of artists with those of owners? This article seeks to explore these questions from a legal and ethical standpoint, examining whether street art can be considered protected by copyright or whether it remains a form of vandalism in the eyes of the law.

Street Art and Property: The Banksy Case

Banksy has gained worldwide fame thanks to his provocative and socially critical art, which appears in public spaces without authorization. His murals, usually in the form of stencils or satirical images, have been placed on the walls of buildings, both public and private, in different cities around the world. While his works are celebrated for their creativity and depth of message, they also raise complex legal questions about intellectual property and ownership of street art. The way Banksy chooses to create art challenges conventional notions of authorship, ownership and artistic value.

Known for his anti-establishment stance, Banksy has repeatedly rejected the traditional commercialization of his art. In multiple statements, he has expressed his belief that art should be accessible to the public and not merely a luxury good. His work often questions capitalism and the commodification of culture, condemning galleries and auction houses that attempt to profit from his work. On several occasions, he has disallowed the sale of his pieces when they have been removed from their original location, arguing that removing them from their context distorts their meaning. This irony is accentuated when his creations, designed to remain ephemeral and free, are sold for astronomical sums in the art market.

However, his stance generates a paradox: although Banksy rejects the commercialization of his art, his pieces have acquired incalculable value and have become the object of speculation. This raises questions about the extent to which he can control or profit from his own creations. By placing his works on other people's property without permission, Banksy challenges the traditional idea of artistic ownership. But this does not mean that his art is exempt from legal protection. So where does the balance lie between the rights of the artist and those of the owners of the intervened spaces?

Different Legal Positions on Street Art on Other People's Property

One of the major dilemmas facing street art in the legal sphere is the relationship between copyright and private property. According to internationally recognized principles of copyright, an original work, from the moment of its creation, is automatically protected, without the need for registration. This means that, regardless of the medium in which the work was created, the creator has moral and economic rights over it.

However, when the work is created without the consent of the owner of the property where it is located, other legal aspects come into play, such as the ownership of the support and the owner's right to dispose of it. This has led to controversies in several countries, where the courts have had to determine whether the artist's right to his creation prevails over the right of the owner of the property.

United States: Protecting Street Art Through the VARA

In the U.S., the Visual Artists Rights Act (VARA) protects the moral rights of artists over their works, allowing them to prevent their destruction if they have achieved significant artistic recognition. An emblematic case is the 5Pointz case in New York, where a group of artists sued the owners of a building who demolished murals without notice. The court ruled in favor of the artists, awarding $6.7 million in compensation, and setting a crucial precedent for the protection of urban art.

United Kingdom: The Unauthorized Commercialization of Banksy

In the United Kingdom, Banksy has been involved in disputes over the removal and auctioning of his murals without his consent. Some owners have removed his works from walls and sold them for millions. Although Banksy has not legally claimed his rights to these pieces so as not to reveal his identity, the controversy has spurred debates about the ethics and legality of these practices.

France: Protection of Moral Rights of the Author

France, one of the most recognized countries in terms of copyright, protects street art under the doctrine of the moral rights of the author, which are non-waivable and inalienable. This implies that, even if the work is in an unauthorized space, its creator maintains the right to its integrity and recognition. This has allowed several artists to sue companies that have reproduced their graffiti in advertising campaigns without consent.

Colombia: Regulation of Graffiti and Designated Spaces

In Colombia, Decision 351 of the Andean Community establishes that artistic works, regardless of their location, are protected by copyright. However, the country also recognizes the power of property owners to dispose of their property, which generates a friction between the protection of urban art and property rights. Nevertheless, Bogota has implemented a policy that recognizes graffiti as a legitimate art form, assigning specific spaces where artists can intervene without legal restrictions.

Unauthorized Commercial Use of Street Art

Another critical point in the discussion about street art and copyright is the unauthorized use of these works by companies and commercial brands. On multiple occasions, fashion designers, advertisers and companies have incorporated graffiti into campaigns without the artists' permission. An emblematic case is that of the Roberto Cavalli brand, which used images of urban murals in one of its collections without authorization, which led the affected artists to sue the company.

The companies' argument is usually that since the works are in public spaces, their reproduction is legitimate. However, this clashes with the fundamental principle of copyright: the creator of the work remains its owner, regardless of where it is located. In this sense, lawsuits have ruled in favor of artists, establishing that the commercial use of a work without the proper license is a copyright infringement, even if the work was created without permission on someone else's wall. 

Removal and Relocation of Street Art: Preservation or Violation of Rights?

Moreover, the removal of murals and their subsequent commercialization without the artist's consent continues to be major conflicts surrounding street art. In many cases, property owners have decided to remove these murals and auction them, taking advantage of their high market value. However, this practice raises ethical and legal questions about the integrity of the work and the right of the creator to decide on its conservation.

Banksy has been particularly vocal on this issue. On several occasions, he has made it clear that his works should not be separated from the place where they were created. In the case of the mural he made to support a community center, the fact that it was removed and made available for sale without his authorization generated debate about the integrity of street art and to what extent the commercialization of these pieces contradicts their original purpose.

From a legal perspective, the removal of graffiti raises issues both in the realm of property law and copyright. While property owners have the right to dispose of their property as they see fit, the VARA Act in the U.S. and other moral rights legislation in Europe recognize the artist's right to prevent the mutilation or destruction of his or her work. The question is whether this right should extend to preventing its removal or sale.

Protection of Artists' Rights: A Universal Right

The fact that a work is created without authorization on someone else's property should not deprive it of its individuality or of the protection that copyright grants to all artistic creations. Copyright is universal and protects a work from the moment of its creation, regardless of the place where it was created. This is a fundamental principle of international law that recognizes the creative effort of the artist and his right to decide on his work.

However, this does not exempt the artist from possible legal consequences for intervening without permission in a private or public space. The issue of street art should not focus on eliminating its intellectual protection, but on differentiating the sanctions to be applied for unauthorized intervention from the recognition of the author's inalienable right over his or her work. Both aspects should be treated separately, without the non-compliance with property rules entailing the unprotection of artistic creation.

Anonymity and nocturnality are, moreover, inherent elements of street art. Many urban artists work clandestinely, not only to avoid sanctions, but also because the essence of their art lies in its spontaneous, ephemeral and protest nature. Too strict regulations could denaturalize urban art, turning it into a controlled manifestation devoid of its cultural and political charge.

Towards a Balanced Regulation of Street Art

To resolve these tensions, it is necessary to establish regulatory frameworks that protect street art without compromising private property. Some solutions include:

1. Voluntary Registration of Works: implement databases where artists can register their creations without compromising their anonymity.

2. Protection Against Unauthorized Commercial Exploitation: Stiffen penalties for businesses that use street art without consent.

3. Agreements Between Owners and Artists: Encourage contracts between both parties to regulate the conservation and possible commercialization of works.

4. Regulation of the Removal of Murals: Implement regulations that prohibit the removal of works without a process of consultation with the author.

5. Regulated Zones for Urban Art: Designate specific spaces where artists can express themselves without fear of sanctions. Cities such as Bogotá have demonstrated that the allocation of specific zones for street art can reduce legal conflicts without limiting creative freedom.

6. Integrity of the Work on Other People's Property

   Like VARA in the U.S., other countries could establish regulations that prohibit the destruction or alteration of urban works with artistic recognition without a process of consultation with the artist.

Street art has evolved into a cultural and artistic phenomenon of incalculable value. Its legal recognition should not limit its essence, but ensure that the rights of creators are protected without compromising its authenticity. Copyright and private property must coexist in a framework that respects both the integrity of the works and the rights of the owners. The evolution of legislation in this area is essential to ensure that street art is recognized as a legitimate and legally protected cultural manifestation.

A Necessary Balance Between Recognition and Regulation

Street art is a form of expression that defies established norms but, at the same time, has gained a place within the institutionalized art world. Its valuation in the art market and its recognition by cultural institutions have generated an urgent need for clear regulation in terms of copyright and property rights.

From one side, it is undeniable that artists should have the right to protect their creations from unauthorized commercial use and to preserve their moral integrity over the work. On the other side, it cannot be ignored that many of these works are created in spaces without permission, which complicates their legal treatment. Finding a balance between these two rights is key to ensure that street art is protected without denaturalizing its transgressive essence.

It is also critical that brands and businesses recognize the importance of respecting the copyrights of urban artists, ensuring that any commercial use is done through transparent and fair agreements. Ultimately, the evolution of street art within copyright reflects a shift in the way we conceive of intellectual property in the 21st century. It is no longer just about protecting creations within the traditional boundaries of art, but about recognizing that creativity can emerge in the most unexpected spaces and still deserve recognition and legal protection.

SEBASTIAN JIMENEZ

Attorney at Law