The reflection on: “Who Owns Street Art?” is very interesting. and in particular how it can be protected by copyright which has been opposed by Street artists, including Banksy who said: “Copyright is for losers”; thereby highlighting the nature of Street Art, characterized by gratuitousness and transience as well as by artistic contaminations.
The matter is regulated in Italy by a very ancient law (Law no. 633 of 22 April 1941) which has undergone various changes over time, most recently in 2023, and which -thanks to the Bern Convention for the protection of literary and artistic works of 1986- extended protection also to street works, including them among works of figurative art, regardless of their ephemeral nature, as long as they are "creative" and, therefore, expressive of the free choices and personality of the Author.
There is then a fundamental distinction between Street art 'commissioned' by a public or private entity for political-cultural, commercial or collecting purposes, and 'independent' Street art, where the creation, often of civil commitment, is created by the Artist illegally.
In the case of authorized works of urban art, the ownership right on the work, unless otherwise contractually agreed, will belong to the owner of the support, by virtue of the principle of accession provided for by the art. 936 of the civil code. The phenomenon of accession determines that a work created by a third party, with its own materials, is incorporated into the immovable property on which it stands, falling within the sphere of dominion of the owner of the material support.
Despite this, works are protected by copyright from the moment of creation. The rights remain with the artist, unless their transfer is expressly agreed. In any case, the transfer can never concern his moral rights, i.e. the rights of paternity and integrity of the work. If the patrimonial rights of the author last up to 70 years after the death of the Artist and can be transferred, the same cannot be said for the moral rights of the author, which are perpetual, non-transferable and inalienable.
In consideration of the above, I would believe that in Italy the use for commercial purposes by the owner of the medium or third parties is not free, being subject to the necessary prior approval of the Artist. The latter, in order to protect his moral right to the integrity of the work, has the right to oppose any modification and any prejudicial act of the work that damages his honor or reputation (art. 20, paragraph 1st, Copyright Law).
As regards independent urban art works, i.e. those created in the absence of authorization from the owners of the material supports whose dominion right over the property is compressed, precisely in light of the Berne Convention of 1986 (applicable in Italy), I would consider the illicit nature of the work irrelevant for the purposes of protecting the Author, so that the owner of the support also assumes the right of ownership of the work, and the artist is recognized as having copyright.
The italian civil Court of Cassation expressed it this way: "The work of genius can be excellent or very bad, educational or corrupting, or even decisive for egregious or criminal actions and can consequently bring its author fame or ridicule, wealth or misery. , and open to him the paths of the highest honors, or the doors of prison. But the work of the mind, whatever it may be, sublime or not, will always remain the inviolable property of the author".
The legal discipline that reconstructs the relationship between the author of the work created in an illicit form and the owner of the support must be referred to the aforementioned art. 936 civil code, pursuant to which the owner can keep the work incorporated into the support by paying a fee to the artist, or can remove the work within six months of becoming aware of the incorporation. As a result of the balance between the two constitutional rights at stake, such as the right to ownership of the property (art. 42 of the Constitution) and copyright (art. 33 of the Constitution), on a practical level that of the owner, being able to dispose of the work and exercise the rights deriving from accession over it.
In the event that the work is removed and detached from the support used or moved from the place of creation, discretionally chosen by the artists, there is an infringement of the right to the integrity of the work when such acts lead to a substantial modification of the message artistic originally underlying the work, damaging the honor or reputation of the artists.
Street artists who hide their real identity behind anonymity or a pseudonym do not incur a deprivation or limitation of legal protection, being able, at any time, to claim paternity of the work (art. 20 Copyright Law), and to exercise the copyright rights connected thereto.
Banksy, for example, manages the rights of economic use on his works through Pest Control Office Ltd, the English company founded by the artist himself in order to protect his works from abusive exploitation. As stated on the company website: “Pest Control Office is the only official body that can authenticate a genuine artwork by Banksy. We do this to prevent confusion, fraud and misattribution”.
And, again: “Anybody is free to use Banksy’s images for non-commercial and personal amusement. Print them out in a color that matches your curtains, make a card for your gran, submit them as your own homework, whatever. But neither Banksy nor Pest Control Office license the artist’s images to third parties. Nobody can use Banksy’s images for any commercial purpose, including launching a range of merchandise or tricking people into thinking something is made or endorsed by the artist when it isn’t. Saying Banksy wrote ‘copyright is for losers’ in his book doesn’t give you free rein to misrepresent the artist and commit fraud. We checked”.
On the basis of these regulatory indications, it is clear that the works of "masked" artists are protected in Italy by copyright in the event of violations provided that they, through valid representatives, retain the right to legitimately bring legal action against third-party users. unauthorized and without having to give up their secret identity.
This quick (and summary) overview of Italian law confirms, if possible, the absolute need to adapt the legislation to the innovations introduced by Street Art, in particular with regard to the "right of the community" to maintain the work; a right that is not protected at all today even if it is precisely what the Street Artist presumably aimed at.
Wow, what a thoughtful reply, thank you for the contribution! And yes, one additional tricky layer is that every country has its own law and regulation, which makes it all more confusing.
Thanks! And yes, those movies are both very interesting (and both by Italian directors, what a coincidence! We must be particularly fascinated by Banksy's adventures, haha)
The reflection on: “Who Owns Street Art?” is very interesting. and in particular how it can be protected by copyright which has been opposed by Street artists, including Banksy who said: “Copyright is for losers”; thereby highlighting the nature of Street Art, characterized by gratuitousness and transience as well as by artistic contaminations.
The matter is regulated in Italy by a very ancient law (Law no. 633 of 22 April 1941) which has undergone various changes over time, most recently in 2023, and which -thanks to the Bern Convention for the protection of literary and artistic works of 1986- extended protection also to street works, including them among works of figurative art, regardless of their ephemeral nature, as long as they are "creative" and, therefore, expressive of the free choices and personality of the Author.
There is then a fundamental distinction between Street art 'commissioned' by a public or private entity for political-cultural, commercial or collecting purposes, and 'independent' Street art, where the creation, often of civil commitment, is created by the Artist illegally.
In the case of authorized works of urban art, the ownership right on the work, unless otherwise contractually agreed, will belong to the owner of the support, by virtue of the principle of accession provided for by the art. 936 of the civil code. The phenomenon of accession determines that a work created by a third party, with its own materials, is incorporated into the immovable property on which it stands, falling within the sphere of dominion of the owner of the material support.
Despite this, works are protected by copyright from the moment of creation. The rights remain with the artist, unless their transfer is expressly agreed. In any case, the transfer can never concern his moral rights, i.e. the rights of paternity and integrity of the work. If the patrimonial rights of the author last up to 70 years after the death of the Artist and can be transferred, the same cannot be said for the moral rights of the author, which are perpetual, non-transferable and inalienable.
In consideration of the above, I would believe that in Italy the use for commercial purposes by the owner of the medium or third parties is not free, being subject to the necessary prior approval of the Artist. The latter, in order to protect his moral right to the integrity of the work, has the right to oppose any modification and any prejudicial act of the work that damages his honor or reputation (art. 20, paragraph 1st, Copyright Law).
As regards independent urban art works, i.e. those created in the absence of authorization from the owners of the material supports whose dominion right over the property is compressed, precisely in light of the Berne Convention of 1986 (applicable in Italy), I would consider the illicit nature of the work irrelevant for the purposes of protecting the Author, so that the owner of the support also assumes the right of ownership of the work, and the artist is recognized as having copyright.
The italian civil Court of Cassation expressed it this way: "The work of genius can be excellent or very bad, educational or corrupting, or even decisive for egregious or criminal actions and can consequently bring its author fame or ridicule, wealth or misery. , and open to him the paths of the highest honors, or the doors of prison. But the work of the mind, whatever it may be, sublime or not, will always remain the inviolable property of the author".
The legal discipline that reconstructs the relationship between the author of the work created in an illicit form and the owner of the support must be referred to the aforementioned art. 936 civil code, pursuant to which the owner can keep the work incorporated into the support by paying a fee to the artist, or can remove the work within six months of becoming aware of the incorporation. As a result of the balance between the two constitutional rights at stake, such as the right to ownership of the property (art. 42 of the Constitution) and copyright (art. 33 of the Constitution), on a practical level that of the owner, being able to dispose of the work and exercise the rights deriving from accession over it.
In the event that the work is removed and detached from the support used or moved from the place of creation, discretionally chosen by the artists, there is an infringement of the right to the integrity of the work when such acts lead to a substantial modification of the message artistic originally underlying the work, damaging the honor or reputation of the artists.
Street artists who hide their real identity behind anonymity or a pseudonym do not incur a deprivation or limitation of legal protection, being able, at any time, to claim paternity of the work (art. 20 Copyright Law), and to exercise the copyright rights connected thereto.
Banksy, for example, manages the rights of economic use on his works through Pest Control Office Ltd, the English company founded by the artist himself in order to protect his works from abusive exploitation. As stated on the company website: “Pest Control Office is the only official body that can authenticate a genuine artwork by Banksy. We do this to prevent confusion, fraud and misattribution”.
And, again: “Anybody is free to use Banksy’s images for non-commercial and personal amusement. Print them out in a color that matches your curtains, make a card for your gran, submit them as your own homework, whatever. But neither Banksy nor Pest Control Office license the artist’s images to third parties. Nobody can use Banksy’s images for any commercial purpose, including launching a range of merchandise or tricking people into thinking something is made or endorsed by the artist when it isn’t. Saying Banksy wrote ‘copyright is for losers’ in his book doesn’t give you free rein to misrepresent the artist and commit fraud. We checked”.
On the basis of these regulatory indications, it is clear that the works of "masked" artists are protected in Italy by copyright in the event of violations provided that they, through valid representatives, retain the right to legitimately bring legal action against third-party users. unauthorized and without having to give up their secret identity.
This quick (and summary) overview of Italian law confirms, if possible, the absolute need to adapt the legislation to the innovations introduced by Street Art, in particular with regard to the "right of the community" to maintain the work; a right that is not protected at all today even if it is precisely what the Street Artist presumably aimed at.
Riccardo – Italian lawyer
Wow, what a thoughtful reply, thank you for the contribution! And yes, one additional tricky layer is that every country has its own law and regulation, which makes it all more confusing.
Great article! Just watched the documentary on Banksy. Really intriguing work!
Thanks! And yes, those movies are both very interesting (and both by Italian directors, what a coincidence! We must be particularly fascinated by Banksy's adventures, haha)
Molto interessante. Brava !
Grazie!