Street art is a form of art expressed by painting or spraying on a wall or another surface (such as traffic lights or billboards) usually without permission from the private or public owner of the support. For this reason, street artworks have traditionally been viewed as acts of vandalism.
Recently institutions have started to appreciate the aesthetic enhancement of street art, making available whole housing blocks or abandoned buildings or other public spaces, to embellish the bleak landscape of suburban areas. Furthermore, works of street artists such as Banksy, Os Gemeos, Skull, Mr Brainwash or Manu Invisible, are widely recognized by art critics around the world, as well as in the most exclusive and famous auction houses.
This notwithstanding, street art remains controversial in connection with the unresolved tension between the rights subsisting in the artworks of the street artists and the property rights of the support owners. This article aims at providing a tiny contribution in the open debate around the limits of protection of the street artworks.
COPYRIGHT IN STREET ART
The first notable point relates to the doubt on whether street artworks could be protected under copyright law.
In general terms, Law 20th April 1941 n. 633 (the Italian Copyright law, the "ICL") grants copyright protection to: "Works of ingenious having a creative character and belonging to literature, music, figurative arts, architecture, theater or cinematography, whatever their mode or form of expression" (art. 1 ICL).
Considering this provision, there is no doubt that street artworks are subject to copyright, as long as they contain a minimum degree of creativity. The category of works of "painting and similar figurative art" protected under Art.2 No. 4 of ICL appears the most appropriate when such creative street artworks comply with the above requisites.
It is worthwhile observing, also, that ICL is neutral to the question of lawfulness of the copyright work. Thus, street artworks deserve copyright protection also when they are not authorized by supports' owners, or are illegal.
Notwithstanding the above, Italian Criminal Law has not recognized yet the subsistence of the copyright underlying the street artworks as a legitimate defense towards crimes against property.
STREET ART AS CRIMINAL OFFENCE
Both art. 639 – "Littering or defacing of someone else's property" and art. 635 of the Italian Criminal Code – "Damaging" are applicable in fact to "non-authorized" street art.
The current version of Art. 639 of the Italian Criminal Code results from the amendments implemented by the national repeal implemented by Law no. 94/2009 called "Pacchetto Sicurezza", and then by the Law Decree 20 February 2017 no. 14 – the so called "Minniti Decree" (named as the Minister of Internal Affairs).
Remarkably, art. 16 of the Minniti Decree inserted a new paragraph to Article 639 of the Italian Criminal Code: now the Court has the power to oblige the sentenced person to repair and clean the places damaged or, where this is not possible, to pay or reimburse the expenses incurred.
In addition, Minniti Decree implemented administrative measures to protect the urban decorum: Art.8 vests the mayors with the power to adopt temporary and urgent orders to prohibit situations that cause detriment to urban decorum, while Artt. 9 and 10 regulate the penalty of the "Urban Daspo" (that is a banning order that on access for 48 hours to the areas where the crime is committed that can be extended for a period up to six months in the event of a repeated offence).
Clearly, such provisions have made even more difficult to protect the right of the street artists over their creations vis à vis the property right of the owner of the support.
THE STREET ART CONTROVERSY IN THE ITALIAN CASE LAW
The Court of Cassation settled the dispute around street artists' crimes in the famous Manu Invisible Case (cfr. Cass., sez. II, 20 aprile 2016, n. 16371).
Manu Invisible is a street artist who painted in different colors the words "manuinvisible.com" on a wall, which was already defaced. The Court of Cassation assessed this circumstance along with the value of the artistic endeavor sufficient for the acquittal of the artist. The Court, in fact, considered the conduct of Manu Invisible as a non-punishable crime because of the particular de minimis threshold of the damage.
The general rule that emerges from this decision is the following: the person who paints a graffiti with an artistic value on a dirty and/or damaged wall commits a crime but he cannot be punished, since this conduct cause no damage. In nutshell, a creative street artwork is better than a dirty wall.
The Italian Courts of First Instance, however, are yet to metabolize such principles.
In the recent Alicè case (cfr. Trib. Bologna, 15.02.2017, n. 674), the Court of First Instance of Bologna sentenced the notorious street artist "Alicé" for the commission of the crime under Art. 639 of the Italian Criminal Code, for having defaced the walls of several buildings in the centre of Bologna. The defense of the accused artist argued that no damage can be found if the wall on which the graffiti is made be already damaged, dirty, or painted. Furthermore, the defense highlighted that the artistic value of the graffiti prevents the act of defacing from being considered as a crime. Nonetheless, the Court stated that the existence of the crime cannot be assessed having regard to the cleanness degree of the good, nor based on the artistic nature of the work, since "art" is a relative concept. According to the Court, these elements are relevant only to determine the penalties .
It appears therefore that the controversy around the street art has not been solved in the courtrooms.
THE PARAMOUNT ROLE OF THE LOCAL AUTHORITIES: THE APPROACH ADOPTED BY THE MUNIPALITY OF MILAN
The players of the street art controversy are various: artists, owners of the building, citizens, the State.
The key role to strike a balance between streets artworks and property works is played by the local authorities. In fact, in exercising their duties to safeguard the urban decorum, local authorities are mandated to prosecute any act of defacing walls or means of transportation but, at the same time, have the power to contribute to the development of "good practices" in this context.
By way of example, the City Council of Milan has expressly prohibited the act of defacing public property on the basis of art. 20 and art. 10, respectively, of the "Rules on urban and similar waste management and maintenance of decorum and environmental health" ("Regolamento per la gestione dei rifiuti urbani ed assimilati e la tutela del decoro e dell'igiene ambientale") and the "Rules on the use of green public areas" ("Regolamento d'uso del verde").
Furthermore, not only the City Council of Milan introduced a monetary sanction of Euro 450 that applies to any writer who is sentenced for the crime under Artt. 639 and 649 of the Italian Criminal Code, but it is also one of the first cities where the "Urban Daspo" found application against writers.
However street art has not been banned from the streets of Milan.
The Municipality of Milan has made more than 100 sites available for street artists that want to express his own artistic ability and personality: the walls allowed for the writers to express their art can be easily found on the Municipal website and they belong to the Municipal Agency or to entities or companies. The artists can freely choose the topic of the work with the limit not to offend religions, countries, people or bodies of the State. In case of violation of such limit, the Municipal Agency has the right to remove the painting by the wall.
No doubt that the overall approach adopted by the Municipality of Milan results beneficial to all the players of the street art controversy: in fact, artists have the opportunity of protecting the integrity of their street artworks, while owners of the building are preserved by offensive graffities or non-artistic scribbles.
Still a fundamental question remains: this approach could effectively limit the creative efforts of the streets artists that traditionally see their works primarily as an act of urban rebellion?
As results from the above, an adequate legal treatment of street art is still far to be found. The line between the street artists' rights and property rights cannot easily be defined in advance.
It is undeniable in any case that, street art has become a means to aesthetically improve the cities with "non-traditional" forms of art. Local Authorities have started to acknowledge this social function and dedicate spaces where street artists can express their creativity.
But it may be not sufficient. When Courts are called upon to decide whether graffiti is a form of art or an act of vandalism (and so if a crime is committed or not), Courts should evaluate whether it be possible to adopt the principle of the Manu Invisible case, and thus acquit street artists when the graffities contain some level of creativity and is made on a ruined wall.
Certainly creativity is a subjective concept: therefore not all difficulties can be solved on a general basis.
We finally believe that specific consideration should be made to the "social function" of the property set forth Article 42 of the Italian Constitution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.