This week, a street performer in Melbourne faces police charges for damaging property without permission for his tribute to the late cricket star Shane Warne – a work he spent 30 hours on.
This shows the importance of choosing the right site for your street art project and having a few tips in mind could help mitigate these potential conflicts.
Apart from property damage, street performers can also be charged with trespassing if they enter the site of a property without permission. This can lead to a fine, hours of community service, or even jail time.
The usual defenses against trespass such as implied license, consent, necessity, self-defense or legal authorization are unlikely to apply to a street performer. Street artists should carefully consider whether or not they can encroach on another person’s property when choosing a site for their artwork.
Arts Law Center, Street Art Fact Sheet
Also, just because a property is empty doesn’t mean it’s free to use. It would be wise for street performers to try to get written permission before putting paint on walls or even entering a site to avoid hefty fines and legal costs. Make sure the permission comes from the landlord, not just the occupants (eg, tenant).
In most cases, the police can charge street performers if they have not obtained permission from the landlord, even if it is unoccupied. The owner can also choose to remove or repaint your work without any warning.
The City of Townsville has a handy checklist on getting street art permission that may also apply to artists from other states. Find it here.
Sometimes being a street artist means remaining anonymous or accepting that your work is ephemeral, but if you want to have a more public profile, getting permission to create your work is an essential step to avoid disastrous consequences.
Check national and local guidelines
Some states have specific guidelines that differentiate street art from graffiti or tags. Often, the latter is subject to dismissal and can be subject to significant fines/penalties.
An example is the City of Melbourne’s Graffiti Management Policy, which states: “Legal street art requires permission from the owner and must comply with the City of Melbourne’s planning regulations and heritage overlays. . Artists are required to obtain written approval from the owner and contact the City of Melbourne for advice, including images of the proposed design and location.
Policies regarding street art and graffiti can be found on council websites, and the Art Law Center has compiled a chart outlining the legalities of creating street art in various states and territories.
Lily: Luke Cornish on censorship, commercialism and street art
Apply to participate in street art initiatives
Unauthorized street art allows for greater artistic freedom, but artists must weigh this against the consequences of legal action.
In other cases, creating unauthorized street art may deny you opportunities such as entry into the Australian Street Art Awards, which only accepts “sanctioned (legal)” street art.
More and more initiatives can help street artists to carry out ambitious projects without the risks.
Some councils have launched initiatives to provide common ground for artists and owners and facilitate work engagement as well as liaison assistance for licensing.
One example is Inner West Council NSW’s Perfect Match scheme, which invites applications from artists and property owners who are happy to host street art. The Council will “play Cupid” to match suitable entries and will also pay artists a fee to create the work.
The City of Hobart also has the Urban Art Walls project, providing a portal for street artists and those wishing to commission work. Also in Hobart is the Vibrance Street Art Festival with regular opportunities and also a Battle Jam where artists can create live works for public voting.
Additionally, Darwin and Brisbane have their own street art festivals.
Can street artists have copyrights?
The public nature of street art sometimes makes copyright ambiguous, but in fact, as a Legal Vision blog post points out, street artists enjoy the same level of copyright protection as street artists. other mediums such as painting and sculpture, provided the work is:
- the result of skill and effort;
- original; and
- in a material form that is recorded, such as a mural, graffiti, stencils or sketches.
Copyright still applies even if the artist creates the work anonymously or under a pseudonym, but they will need their legal name to file a copyright infringement claim.
Owners cannot claim copyright in the work unless there is an agreement with the artist.
Copyright prevents others from reproducing, publishing or communicating the work without the consent of the artist. This may include photographing the work (especially for commercial purposes), using it for film shoots, putting it in a catalog, or featuring the work on a website.
If you agree to people photographing the work for non-commercial purposes, such as posting it on social media, the Arts Law Center’s advice is to paint a copyright symbol © and ‘CC BY-NC’ ( Creative Commons Attribution Non-Commercial license ) somewhere on the work.
For more information, visit the Copyright Agency website.