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NOW you see it… Legalese of Street Art

[Untitled] (Vilnius, Lithuania)
By Irina Tarsis, Esq.

Did you know that some street artists pay building owners for the right to paint graffiti? If so, it is almost as jarring as finding a tag on your business shutters early in the morning. What a synergistic example of the seemingly disparate interests: artistic, economic and legal — satisfied. According to Wilfredo Feliciano, a.k.a. Bio, quoted in a recent TNYT article, his group of street artists have been paying up to $1,000 for the right to paint ads and personal pieces on the streets of New York for years. Of course, paying to paint graffiti is probably an exception to the rule of the self-expression form that began as a subversion and turned into a social-cultural manifestation of the working class. Graffiti is still considered a crime and New York City still has a task force (Citywide Vandals Task Force) that is dedicated to battling vandalism of property by graffiti offenders (a rose by any other name).

Truth be told, graffiti and tags are ubiquitous in our post-industrial world. From Los Angeles to Vilnius, aerosol art, better known as graffiti, saturates walls of urban landscape. It is a phenomenon that started probably around the time when aerosol/spray paints became available to the general public.

"Better Out than In," by Bansky (New York, NY)
“Better Out than In,” by Banksy (New York, NY)

Artists, as we have been told, just cannot help themselves; they need to create, they need to paint, they need to self-express. In the Fall 2013, New York City had been particularly focused on graffiti art because a world-famous prankster, Banksy, choosing the Big Apple for his artist-in-residency sojourn and because of the 5Pointz case and controversy (Read: Center for Art Law early coverage and discussion of the ultimate decision by Nicholas O’Donnell in the Art Law Report).

To say that graffiti makers are becoming interwoven into the mainstream is to say little. However, as the recent decision in 5Pointz dispute indicates, the law still favors the rights of the real property owners against those who paint on their property walls. Tagging by definition is an unsanctioned act of defacing a physical surface not advertised as a surface for self-expression. Between the right to free speech and the right to make you speech tangible and permanently a part of another’s private property begs questions related to the First Amendment of the US Constitution (freedom of expression and such). Banksy and many other street artists are very talented and poignant; however, they cannot expect unfettered and unlimited access to use walls of others indefinitely.

Most recently, The New York Times ran an article warning against the  “gradual loss” of wall space for street artists. There David Gonzalez interviewed a number of street artists, including J.J. Ramirez, who was “Mico” tagging subway cars and walls as early as the 1960s. According to Ramirez, the disappearing urban canvas indicates that the privileged care little for the “art form invented by the children of the working class.” This and other quotes from established taggers and graffiti writers (note the difference) foretell a looming fight between street artists for space to express themselves.

In hindsight, an amenable and logical solution to save space for street artists, such as the ones formerly graffitiing 5Pointz walls is to buy a space and create a new graffiti mecca (and may be charge rent) allowing graffiti writers to continue their creative quests. As Feliciano admits, he and his friends are regularly painting over a plywood replica of a 1980 subway car, equating this exercise to “painting at the office.” Well, when the artists decide to paint en plein air they brought canvas outside and then pack up and took everything back home, leaving nothing of value at the mercy of the elements (weather, market, and vandalism).

Sources and suggested readings: Rafael Schacter “The World Atlas of Street Art and Graffiti” (New Haven: Yale U. Press 2013); David Gonzalez, “As Legal Graffiti Walls Disappear, Street Artists Ponder Future ,”  The New York Times (Nov. 24, 2013).