Street Art for Sale and Questions of Ownership

December 15, 2015

Remember that time when street art used to be just what the name suggests – art made on the streets that belonged to everyone? During the last decade, detachment of street art from its genuine environment became metaphorical and physical. On one hand, studio works by celebrated street artists entered galleries and the art market, on the other, due to the popularity of the movement, people started to remove the pieces from the streets with various motifs behind these actions. The detachment of murals and other street artworks from the walls sparked a line of controversies and opened some interesting debates. Who has the right to sell public art? To answer this question, we need to know whom do the pieces belong to? Is it the artist, the owner of the building, or is it the local community? The questions of copyright and ownership became truly important during the last decade when street art is concerned, but instead of speculating whether it is right or wrong to sell street art, let’s see what the law has to say about these practices.

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Keith Haring's chalk drawings were among the first street art pieces to be stolen from the public spaces. Photo Chantal Regnault Keith Haring Foundation

Street Art “Thefts” – Banksy Controversies

To be clear, the removal of graffiti and street art pieces isn’t that new. During the eighties, many Keith Haring’s chalk drawings on black paper were removed from subway stations with the intention of making profits out of them. However, it isn’t until few years ago that people started to seriously ponder upon this phenomenon. And, as you can assume, it was Banksy’s murals that triggered controversies. First his mural I Remember When All This Was Trees was removed from the crumbling wall in Detroit and the non-profit gallery responsible for the detachment claimed that their motif was the preservation of the work. If it was mural by some lesser-known artist, it might have passed unnoticed, but it was Banksy and the owner of the building was quick to respond with a lawsuit. Two sides eventually reached a settlement and the controversial piece was sold this year in September at Julien’s auction house for $110,000 along with even more controversial Gaza piece titled Donkey Documents. Other famous Banksy's pieces that were removed from the walls and made many nod in disapproval, were Slave Labor and Art Buff that was recently returned to its original location. Banksy’s pieces are certainly the most talked about ones, but other artists have experienced the same thing. Invader’s artworks were targeted by these street art “gatherers” as well, and JR’s pieces in Kenya more recently. And these are only the famous examples that made the headlines.

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JR - Women are Heroes: A Global Project, artwork from Kenya sold at Julien's auctions in September

Copyright and Ownership – Two Different Things

In these situations, street art enthusiasts are quick to condemn the actions from the moral point of view. The removal of murals is often seen as a theft, but from a legal perspective is this true? Street artists know well that once they finish their public piece it continues to live on its own. When Banksy’s murals were exhibited in Stealing Banksy? exhibition and auctioned afterwards, Banksy stated that “it’s disgusting people are allowed to go displaying art on walls without getting permission”. Permission from whom might as well be the question. Permission from the artist? And this is where the distinction between copyright and ownership enters the scene. Unsolicited murals and graffiti created illegally on somebody else’s property are considered to be owned by the property owner. Therefore, the owner of the wall has all the ownership rights when it comes to the physical work. The things are different when it comes to copyright, but when illegal street art is at question, these rights tend to vary. In France for instance, the creator of illegal art loses ownership rights and the copyright, but in the US and the UK, copyright law is neutral towards the legality and this benefits street artists greatly. However, copyright only concerns the actual image and artistic expression and the artist is not entitled to right over its physical copy. This is why when copyright and property law clash, the owner of the wall often wins and street art pieces are able to enter the auction houses and galleries. The sale of street art creates an ethical dilemma, as it goes against the wishes of the artists, but when law is concerned owners of these walls have every right to sell the pieces.

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Banksy - I Remember When All This Was Trees at Julien's auction house

Authentication – Why Artists Refuse to Authenticate their Public Works

So the question is - what can street artist do to protect their works? They may attempt to claim “moral rights” to their work established by the Visual Artists Rights Act. Under VARA, the artists may claim that it is unfair for their pieces to be removed, displayed, destroyed and distributed by third parties without their permission. However, things are not simple here either. Although Visual Artists Rights Act provides additional rights to the artists, regardless of the physical ownership of the work, illicit street art does not qualify for VARA protection. Currently, the only thing street artists can do to stop the sales of their public works is to refuse to authenticate them. The lack of authentication means that many auction houses would refuse to sell these pieces and not many collectors would be eager to buy them without a certificate. In the end, street art is site-specific and it was never meant to become a commodity and enter private collections. Street artists who refuse to sign and authenticate their pieces can save them from entering the market, and ultimately this is why Banksy founded his infamous Pest Control committee.

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Ben Eine is also among those artists who refuse to authenticate their works, as in his opinion "street art is made to be enjoyed and not sold"

Collecting Street Art - Few Things You Should Consider

Street art collected directly from the streets has an ambiguous position in the art market. There are buyers who are interested in those pieces and even more people who are trying to sell them. However, the lawful sales transactions become a problem when the work does not come with the certificate of authenticity. The expert’s certification can be helpful in some cases, but does it matter if the artist refuses to authenticate his/her work. And even experts can sometimes make mistakes. Collectors who want to avoid frauds should be really careful when it comes to the works acquired from the streets. Considering that almost all famous street artist also do a line of studio works, perhaps the best solution is to leave their street pieces where they belong and to collect those artworks that were meant to be collected. From the ethical point of view, it is a good decision, and you can always be confident that you’re buying an authentic piece.

Featured image: Banksy - Art Buff in Miami. All images used for illustrative purposes.

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