What the 5Pointz ruling means for street artists

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A four-and-a-half-year legal battle that pitted street artists against landowners has come to an end.

On Feb. 13, 21 graffiti artists were awarded US$6.7 million in damages after a developer whitewashed works of theirs located on his property.

As an art law attorney and professor, I’ve been following this case closely. Some might wonder whether all graffiti will now be protected, giving street artists free rein to work on any building or public space. Others might wonder what rights building owners have when it comes to dealing with graffiti.

But the most significant aspect of the ruling might be that works of street artists are being granted the same rights as those of established, professional artists.

Fringe artists at a disadvantage

In the art world, not all artists have the same amount of power.

Even successful artists can lack the financial means to protect themselves against art collectors and wealthy players who might try to profit off their work.

But the discrepancy in power is particularly stark in the realm of fringe art, with graffiti artists largely unable to reap rewards from their skills. They usually don’t have access to venues in which to display and sell art, like galleries and auction houses. Moreover, their works are rarely seen in curating institutions, like museums.

They’re considered outsiders: They use the streets as their canvases in order to make their art accessible to the masses and enrich the cityscape.

Not only do these artists often receive little or no profit from their work, but their medium – the walls of private and public buildings – can put them in direct conflict with those who have ample resources at their disposal.

Some street artists intentionally use illegal means, like vandalism, to communicate their message. For this reason, they haven’t always received full protection of the law.

Yet artists do have rights under the law. Should the law protect art created through vandalism? Is it against public policy to protect art stemming from criminal behavior?

A spate of recent cases demonstrates that intellectual property rights do extend to street art. These authors are entitled to rights stemming from trademark law, copyright jurisprudence and even the right of publicity. For example, street artists have sued fashion labels and clothing brands for appropriating their designs, as in the case of Rimes v. Moschino and Aholsniffsglue v. American Eagle. In both cases, the fashion brands ended up settling, paying large fees to avoid liability for infringing intellectual property rights.

However, the unanswered question is whether the canvas for the artwork – like a building – can be protected against destruction. In the case of vandalism, it seems unlikely that a court would protect that art. But it’s never been clear whether art laws would protect legally created street art from destruction and require its preservation.

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