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Barely Legal - Selling Street Art in Switzerland

  • Banksy's Balloon Girl, via pixabay.com
March 22, 2018
Deeply invested in contemporary art, Widewalls magazine aims to provide a unique experience for its readers in form of in-depth and quality journalism.

“Barely legal” is both the name of the temporary exhibition held by Banksy in Los Angeles back in 2006 and the most appropriate description of the juridical situation which arises when the owner of the building on which a graffiti was painted “removes” it and sells it without previously asking the artist’s permission.

In 2014, Balloon girl by Banksy was detached from its wall in London, restored and then sold in an auction. The same year, Spy Booth and Kissing Coppers encountered a similar fate, in Cheltenham and Brighton respectively, while the artist publicly declared himself against this kind of “trafficking”.

The sale of graffiti, not only the ones signed by Banksy, is by now a well-known yet controversial phenomenon: What are the implied rights? Of which parties? Who of them detains the right to sell the graffiti? But above all, can it be sold?

By pretending that the case mentioned above occurred in Switzerland, I’ll briefly analyze what domains are at stake in the domestic legislation and what their responses are, but above all, I’d like to ask a question – and propose an answer: Is the legal frame actually pertinent to adequately address the issue?

In other words: does the conventional understanding of law gather what street art is, or does it fail to properly apply to its inherent uniqueness and its various specificities?

An example of how street art is given recognition. Image via pixabay.com
An example of how street art is given recognition. Image via pixabay.com

Criminal Law

Under Swiss criminal law, spraying a graffiti on someone’s property means being liable under the criminal offense of “damage to property”, contained in art. 144 of the Penal Code. The protection scope of this article is letting the owner decide what to do with his own possessions – in other terms, to manage them according to his own will.

That’s why a modification of the appearance of the thing, and not only a deterioration of its substance, is sufficient to found culpability. And that’s also why a subsequent graffiti realized on one already there is also capable of being subsumed under the same provision. The effective, quantifiable damage caused to the property or its contrary – an increase of its value, as it’s likely to be in our case – doesn’t have any relevance as to the fulfillment of the constitutive elements of the provision.

So, be it a result a damage or a gain of the owner, the latter can virtually report the act to the police.

Street art gives your Sunday stroll a special kick, and no entry fee is required. Image via pexels.com
Street art gives your Sunday stroll a special kick, and no entry fee is required. Image via pexels.com

Civil Law

What civil law has to say is interesting in two ways. On one hand, it is concerned with the property relations on the work of art (who is the owner?) and on the other with the obligatory relations between the involved parties.

Speaking of property, the Swiss law recognizes the so-called “principle of accession”, through which a thing becomes an integral part of the whole when the first is permanently and durably attached to the latter. Following this rule, integral parts share the legal destiny of the whole: as soon as the accession takes its effect, the owner of the part loses his rights on it definitively. A subsequent re-separation of the two things does not reestablish the original property relations: the “real” rights on the thing are lost forever.

Some authors coming from the intellectual property domain point out how it would be a fiction to use the accession principle here, as what happens here is that intellectual property is here linked to “real” property – and not real with real, as the normal case would require.

One way or another, we can admit that the owner actually acquired the property of the graffiti “originally”, which means not through a purchase.

Obligations are basically duties that the parties owe each other and were born through a contract, a tort or another legal reason. Depending on the reason why an obligation was given rise, its content changes: it can be a duty to pay the price of a bought object, or the sum corresponding to a suffered damage. Considering the fact that we’re talking about illegal graffiti, the parties were obviously not bound by a contract.

While Banksy acted without a mandate in the sphere of property rights of the owner of the building, the latter acted without a mandate in the sphere of intellectual property rights of the artist. In other, simpler words, they managed each other’s affairs without being asked to do so. And this gives birth to mutual obligations. What’s more, both intellectual and real property are considered as “absolute” rights, violation of which is the synonym of civil illegality. This also has the potential of founding obligations, this time under tort law (in absentia of a contract).

So, in both ways, these obligations aspire to the reparation of a damage or to the refund of earned gains (for example, those obtained through the sale of the graffiti).

Street art is an ongoing collaboration between different artists. Image via pixabay.com
Street art is an ongoing collaboration between different artists. Image via pixabay.com

Intellectual Property Law

Quite interestingly, especially as it differs from the solution adopted in other countries, in Switzerland copyright starts at the moment of the creation of the protected work. No application of the author or subsequent act of some authority is required.

This means that the illegality in which the work may have had its origin is completely irrelevant to the birth of the copyright: the intellectual property domain is in this sense an independent parallel to other legal domains and thus not affected by the aforementioned considerations. Banksy is – as author – entitled to this right, and this gives to him some legal tools to potentially work with.

First of all, Banksy has the right to divulge his work, which he already did by painting it on the façade of a public building. This disclosed it to the eyes of an undefined amount of people, which is per se the definition of divulging.

Secondly, Banksy has the right to put his work into circulation. Although this will extinguish part of the rights attached to copyright, it is the first step if the author’s intention is to commercially exploit his work.

To divulge and to put into circulation are not merely two acts pursuing the same target: there is an intrinsic difference between them. Through divulgation, Banksy did not extinguish his rights. This means that his work was still protected by copyright in the moment of the sale and also, that the owner had to ask for Banksy’s permission.

To conclude, the owner violated the rights of Banksy under intellectual property law and this gives Banksy some rights vis-à-vis the unlawful seller. These are the obligations that we previously saw under civil law (copyright law refers exactly to those provisions). Full circle, one could say.

Banksy's Spy Booth in Cheltenham, via Wikipedia
Banksy’s Spy Booth in Cheltenham, via Wikipedia

In Conclusion

It all seems great, right? The law lets the artist enforce the payment of damages and ask gains back. But is this solution really that appealing? Or is it in some way upsetting?

Isn’t the writer, by painting his work on a public building, paradoxically trying to repair it from the conventional art domain, so from everything that recalls museums, galleries, and above all “the market”? Isn’t he voluntarily deciding not to monetize his work and to rather offer it to the city and its inhabitants, in a permanent and free exhibition? The result of these plausible intentions is, as we know, potentially great: a sort of collective performance in which the passerby, the urban architecture and its partially painted surfaces play with each other.

Does the traditional conception of law recognize these aspects? What it seems, is that conventional law solutions and street art don’t really get along, as the first answers to the market-free logic of the latter with economically-tailored tools which would enable the author to realize the supposed commercial interests on his work. The real objective of a street artist is to maintain his work under the perpetual glance of its sidewalk public and not to be able to gain from it, or to prove the paternity of it – as this is already taken care of by internal street art logic.

Despite the aforementioned, conventional legal tools being fundamental in other legal domains, it seems they totally miss their point when it comes to the means of creating art, that is probably one of the last pillars to be found outside trade logic.

So, the depicted dilemma isn’t easy to solve, and it is surely not by decriminalizing graffiti or by declaring tout court that all street art is worthy of protection as it’s done with monuments, that the ideal frame will be reached. But given its humble beauty, its inherent and everyday challenging potential and its natural tendency of being a free collective heritage, the attempt to give to street art and its creators the just legal recognition and support is at least worth a try.

Written by Giulia Walter.

All images used for illustrative purposes only.