Smith on Street Art and low Intellectual Property

Cathay yvette Nikka Smith, of  the University of Denver Sturm College of Law has posted on SSRN, Street Art: An Analysis Under U.S. Intellectual Property Law and Intellectual Property’s ‘Negative Space’ Theory, 259 DePaul J. Art, Tech., & Intel. Prop. (2014). From the Abstract:

Street art, in its original and purest form, is artwork created without authorization, usually illegally, on either private or public property. Until recently, street art has been considered a social nuisance and is almost universally illegal, but it is now slowly becoming a “hot commodity” garnering press and social media attention. In recent years, local communities are increasingly beginning to value street art in their neighborhoods, and the art world has also caught on to the street art trend. As a result, street art is being copied and reprinted on clothing, posters, commercial items, and exhibited and sold in auction houses and galleries. Cities, such as Bristol, Bethlehem, and Taichung, are embracing street art by offering guided tours to show off their famous street art. Street art — no longer considered merely a social nuisance as it once was — is now becoming the “next big thing” in the art world and market. As street art evolves into commodity, the questions naturally are: who owns street art, and should intellectual property law protect street art from unauthorized copying, removal and sale, or destruction?

This Paper attempts to answer these questions under U.S. law and under recent scholarship examining “negative spaces” in intellectual property. Specifically, this Paper concludes that street artists could attempt to use U.S. copyright law and VARA to protect their artwork from unauthorized copying and destruction. However, due to the nature of street art, and the ethos of street artists, intellectual property law is not an effective way to protect street art. Nevertheless, as has been evident in the past decade, innovation and creativity in street art will thrive even without the artificial exclusivity created by intellectual property. Street artists have been protecting their work through normative rules developed over the years, and communities are also looking for creative ways to protect street art from being destroyed or removed from their neighborhoods. The concern that the lack of formal intellectual property protection will “discourage” street art’s creation is not a valid justification to impose or create stronger intellectual property protection for street art. Economic incentives are not necessary to motivate the creation — or the continued creative output — of street art. The evidence of this can be found on the streets of any big city, where street art continues to flourish in a norms-based, low-IP world.

As always, if you have a draft or an article related to art law, antiquities law, or cultural heritage generally, please consider posting a draft on SSRN or another open access site.