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Commercialising Street Art – what you need to know

December 5, 2018, By

Street Art comes in many shapes and sizes, from discrete pieces which disappear into the urban background, to breathtakingly spectacular murals which cover entire buildings.

Some forms of Street Art are occasionally accused of vandalism or trespassing – nevertheless it is also beyond question that Street Art is also art.

In fact Street Art is one of the most vibrant and rich scenes in contemporary art, and includes immensely talented and successful young artists.

Nevertheless, Street Art and its artists still suffer from common misconceptions about this medium, which causes frequent misunderstandings and disputes when it comes to the commercial exploitation of artistic works.

So, whether you are an artist, a business hoping to use Street Art to enhance your premises or in marketing materials, or even a photographer using Street Art as a backdrop for your next photoshoot – here are some key points to remember.

1. Street Art is protected by copyright

Like all creative works, a mural (regardless of size or level of skill involved) constitutes a creative work and is protected by copyright. The artist automatically owns copyright, which means that you cannot use a mural in any commercial way without the artist’s consent.

As an artist, copyright protection is a valuable asset, especially because it is free and automatic. Make sure you have some form of dated evidence that you are the author of the work (dated photographs of you working, emailed to you or posted in social media) would be helpful in proving this if necessary.

Having appropriately discussed and agreed licensing or assignment agreements is crucial to ensuring both parties are on the same page, and can avoid costly and unpleasant disputes later on. Make sure you discuss type and length of use for any licensed work.

2. It is still copyrighted even if it was created illegally

Just because the artist didn’t have permission to paint on that particular wall, does not automatically mean you can use the artwork freely. There is still some debate on this subject, but it is generally accepted that even illegally created artwork is still protected by copyright.

Of course, this may cause other issues in practice: if you are asserting copyright, you will have to admit to committing an offence, which may involve facing the consequences.

3. “Fair Use” and “fair dealing” for incidental use

If you take a photograph, and a mural happens to be visible in the background, this may constitute an “incidental use” of the copyright work – which means you would not be infringing the artist’s copyright.

However, this incidental inclusion of the artwork must constitute “fair dealing”, which means that the use must be in good faith. This means that, if you have clearly chosen to conduct a commercial photo shoot in front of a Street Art mural which features prominently in the final images, you are evidently not able to rely on this defence.

Conversely, if you are shooting video and the final edit includes two seconds of footage which show a mural behind an actor, this is likely to constitute fair dealing.

4. Droit de Suite

Like other media, many Street Artists (and not just Banksy!) sell their work in galleries.

The law of “droit de suite” means that, if an artist sells a piece to a third party, and that piece is later sold on for millions of pounds, there may be a way for the artist to claim a proportion of the latest fee.

So it is certainly worth keeping an eye out for what your work is worth on the open market!

About us

Briffa specialise in Intellectual Property law and have particular expertise and experience in art, with a focus on contemporary art and unconventional media.

Whether you would like advice on protecting, licensing, buying or selling art, please feel free to get in contact.

Written by Joshua Schuermann

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