Some people pay millions for it, for example for a work by Banksy, and for others it is simply trash. We are talking about street art, often also called graffiti. Let’s take a look at the legal questions that arise in this context.
1. Is Street Art really Art?
Is street art really art? Interesting question, but let others worry about that. Art critics, for example, or art experts – or those who think they are.
a) Legally, i.e. from the point of view of copyright, it does not matter whether something is “art”, but it is sufficient if it is a “protected work” in the sense of § 2 UrhG. This is understood to mean a “personal or individual intellectual creation”.
And what is a “personal or individual intellectual creation”? Good question. The UrhG does not say. Case law and legal experts have agreed, if you like, that it depends on the “individuality” of the creation, on the “level of creation”. Doesn’t help you much now, does it? I can understand that.
So further: The central criterion is “individuality”. The individuality of the author must be expressed in the work. Purely technical achievements, which anyone with average skills could also produce, are not sufficient. Nor is it sufficient that something was very time-consuming or involved special effort or expense. Routine performances and thus the “mass of everyday creations” are not protected by copyright.
Protected works do not necessarily have to be “beautiful”; there are also butt-ugly works. “Individual” is rather the magic word here. A work should be the expression of an individual character, it should be creative, convey an individual message. …
b) In a ruling from 2015, the Regional Court of Munich I (ZUM 2015, 423) awarded a graffiti that consisted of letters the quality of a work on the following grounds:
“The graphic design of the letters … is a personal, individual creation. When looking at the letters, the inclination, the elongations … and the loop at the end are particularly striking. Overall, the letters to be judged here are characterized by a playfully sweeping aesthetic (see also Higher Court of Munich, decision of 16 July 2014, Az 29 U 4823/13). …”
c) “Playfully sweeping aesthetic”. Well then. Are you smarter now? No. Never mind. Even lawyers and courts often disagree on whether a particular “work” is copyrighted or not. The boundaries are blurry. What one person considers to be ingenious is just meaningless everyday crap to another. Just like with art.
2. Is it allowed to simply wash off or paint over Street Art/Graffiti?
Let’s assume that the “painting” you found on the wall of your house one morning fulfills the definition of a protected work and is therefore protected by copyright. Do you then have to tolerate it or are you allowed to remove it, for example by washing it off?
a) Legally, we have a conflict here between the copyright of the creator of the work, i.e. the street artist, and the property right of the house owner.
b) The creator of a work has the sole right of exploitation according to § 15 ff UrhG (reproduction, distribution, etc.). In principle, he can defend himself against any distortion, alteration or destruction of his work (§§ 14, 39, 62 UrhG).
c) Conversely, the owner of the house does not have to accept impairments of his property (§ 903 BGB) and can demand that a disturbance or damage to his property be removed or reversed (§ 1004 BGB).
d) As a rule, this conflict is resolved by a balancing of interests to the effect that the property right takes precedence. This is justified by the fact that the graffiti artist “imposed” his work on the house owner, so to speak. The owner did not want his house wall to be painted with graffiti. Therefore, he can now demand that the painting or writing be removed, or take the scrubbing brush himself. The copyright has to give way to the right of ownership.
I assume that most of you would have seen it the same way instinctively or from your sense of justice.
3. Is it allowed to take Pictures of Street Art and even to exploit them commercially?
a) If you stroll through the Barri Gòtik in Barcelona – or Barrio Gotico, as we like to say in our school Spanish – you will find quite interesting examples of street art in various corners. Are you allowed to simply photograph these works?
Yes, you may. Section 59 of the Copyright Act (Works in public places) gives you the right to do so. This is called „freedom of panorama“ (more on that in a moment).
(Well, maybe we should move our example case from Barcelona to Berlin-Kreuzberg after all, so that we don’t have any problems with the application of the German UrhG. Copyright law is strongly harmonized in Europe, but I couldn’t tell you offhand where exactly the freedom of panorama is anchored in the corresponding Spanish law).
b) Would you be allowed to produce postcards from your photos and sell them?
Yes, you are allowed to do that as well. The BGH (German Federal Court of Justice) stated in this regard in its decision on the East Side Gallery (GRUR 2017, 390):
“The provision of Section 59 (1) sentence 1 of the Copyright Act not only permits the taking of photographs of a work that is permanently located on public paths, streets or squares, but also the – also commercial – reproduction, distribution and public display of the photograph.”
And in a decision involving the painting of a ship, the Cologne Higher Regional Court (WRP 2016, 274) ruled:
“A work attached to the exterior of a sea vessel may be reproduced and made available to the public pursuant to Section 59 of the Copyright Act.”
The freedom of panorama (works in public places) therefore gives you the right to photograph street art, graffiti and other works that are (permanently) located on public streets or squares and also to commercially exploit your photos.
c) But, so that we do not misunderstand each other here: The freedom of panorama only applies in public spaces, not in a museum, not at an opening, and not in a private backyard. Whether you are allowed to take pictures there is decided by the owner of the house. And if you first have to climb a ladder to be able to photograph a house over a wall, then this is also no longer covered by the freedom of panorama. I’m just saying, so you don’t get any stupid ideas. …
4. Conclusion: It’s not easy for (Street) Artists
Street art can be art or a copyrighted work, but it does not have to be. It depends on the circumstances of each case.
In relation to the building owner, on whom the street artist imposes his art without being asked, the sprayer regularly gets the short end of the stick. The owner may remove graffiti without further ado, without infringing the graffiti artist’s copyright.
In other words, even if street art is art in individual cases, the owner may “remove” it. The spraying of other people’s house walls or subway cars can even have a criminal component (§ 303 StGB, damage to property).
As an artist, it’s not easy.