Graffiti, street art e diritto d'autore: un'analisi comparata

Street art: art or vandalism? Although it used to be stigmatized as vandalism until no long ago, street art is currently largely appreciated and celebrated. The public loves and defends artworks by Banksy, Blu, Ericailcane or OSEGEMEOS, who became today’s acclaimed artists. The power of Graffiti and street art is being ephemeral: they surprise you in the streets and are hidden around the corners, regardless of bad weather and despite the changes of the city landscape. They are created without the consent of the owner of the wall, who might get angry about them or even love them. This paper aims is to analyse the relationship between copyright and street art, seeking to determine the extent to which copyright law is able to offer protection to street art works. The question may remain theoretical as street artists rarely file lawsuits in courts. However, street art allows legal experts to reason about the boundaries of copyright law and question the traditional property right of the artist on the artwork’s tangible medium. The first chapter of this paper will analyse graffiti as artistic and sociological phenomena, underlying the contradictions within this artistic movement. Some definitions for graffiti and street-art will be suggested. The second chapter will question, from a comparative legal perspective, whether copyright law can be successfully applied to graffiti and street art. In particular, it will inquire whether illegal artworks can be protected by copyright law despite the illegality of the circumstances of their creation. US, UK and Italian law will be taken into consideration. The third chapter will focus on the moral right of integrity, always from a comparative legal point of view. The conflict between the moral right of the artist and the property right of the owner will be extensively explored. It will be argued that street art can be protected by copyright law, as the illegality of the work does not affect copyright-protection in any of the considered legal system. Although the UK, US and Italy have similar legal approaches towards the moral right of integrity, artists’ prerogatives are protected in a significantly different way. Whether in Italy and in the UK artists can only oppose to distortion and modification of their artwork which is prejudicial to their honour and reputation, US artists can also prevent the destruction of their creations. The considerations on copyright and the artist’s moral right to integrity will show the opportunity to think of property as a limited right when it is related to an artwork. In fact, art is peculiar because even if it belongs to one person, the whole public can be interested in preserving it as a common good.