YEAR 2022

ISBN 9789587908251

Street art and ownership of the work. A comparative view

Alfredo Ferrante


civil law; street art; intellectual property



 As a premise, we note that, at present, there is no legal definition of art, at least in the framework of analysis in which this study will be carried out. It is therefore necessary to take into account the multiple facets that the phenomenon of art can adopt, seeing that these nuances are verified, even from the lexical point of view, since in Spanish the term art can be designated both feminine (as was the Latin ars) and masculine. Likewise, there is also no legal definition of street art, and designating it - or translating it - as urban or street art can, indirectly, imply a different legal connotation, more or less broad.

 For all these reasons, analysing something from which undoubtedly legal nuances derive becomes a difficult task, given that there are undefined features from the point of view of its definition.

 Faced with this situation, one could assume a doctrinal definition, seeing street art as an artistic movement carried out in an urban or outdoor context, without prior authorisation and located in a place visible to the public.

 However, the latter definition can be associated with an embryonic type of street art, as it existed several decades ago. Today, street art is confronted with distorting elements as a result of its evolution.

 In this sense, it can be observed that, nowadays, there are more and more calls for concerted street artworks. Although the phenomenon was initially approached from a non-contractual point of view, in some cases, it is nowadays associated with a contract. Precisely what could initially be circumscribed within the framework of a unilateral act, takes on the connotation of bilaterality when, in some cases, the work is authorised to be carried out. By way of example, in the public sphere, we can currently find projects being undertaken to renovate or aesthetically improve certain urban areas. In these circumstances, there is a clear move towards contractualisation. Thus, there are city councils willing to promote street art practices for established or unestablished artists, and even the possibility of authorising graffiti in public spaces is expressly regulated.

 A clear example of the evolution of the street art phenomenon appears in the 1990s: Keith Harring goes from being imprisoned for drawing in the New York underground to being invited to the other side of the ocean to paint a surface of 180 metres, a surface that, years later, will be restored for preservation. As can be seen in this example, the authorisation to execute a street art work involves manoeuvres in which several actors participate. This generates some advantages, such as the possibility of agreeing that the commissioner can cancel the work at any time if it does not meet his expectations.