How to buy and sell ‘real’ street art

Annabelle Gauberti

Many people want to collect street art, but there are issues with taking it directly from the street. Annabelle Gauberti, founding partner of the London and Paris art law firm Crefovi, and president of the International Association of Lawyers for Creative Industries – ialci–  explains the issues you need to be aware of.

Works of street art can be found and bought in reputable art galleries, which legitimately represent famous street artists such as C215, Banksy and Invader.

This type of works of street art, which were purposefully created and then placed on consignment by the street artists in selected galleries, each comes with a certificate of authenticity.

However, some works of street art are found – and collected – directly in the streets, as a result of the illegal activities that these same street artists perform. For example, French street artist Invader is famous for circulating in Paris and other cities at night, then gluing his famous mosaic graffiti representing colourful space invaders on buildings and walls .

If a collector, who found the work of art in the streets, decides to sell that piece of street art either through a gallery or a broker, how can he make sure that such sale is lawful?

Before we answer this question, we need to check who owns the work of street art, which was gathered from the streets.

Unfortunately, there is no clear-cut answer to this question.

Before putting the work of street art in the public domain, on a wall, concrete sidewalk, etc. the artwork, and any copyright in such artwork, belonged to the street artist, of course.

However, by adding this work of street art on a wall, sidewalk, door, without asking for prior authorisation from the owner of such wall, sidewalk or door, then the street artist commits a crime.

In France, for example, the author of an unauthorised graffiti may be liable to a fine of Eu3,750 as well as community service if the damage caused to walls, vehicles, public alleys or urban assets is “light”. When it is not, the author may be sentenced to seven years of jail time as well as a Eu100,000 fine.

Therefore, pursuant to article L112-1 of the French intellectual property code and the most recent French case law, when the creative work is illicit, it will not benefit from the protection of copyright afforded by the French intellectual property code.

Moreover, the author of a criminal act consisting in degrading a wall or pieces of urban furniture (trains, letter boxes, etc.) does not have any incentive to come forward and be recognised as the author of such degradations (since the police and criminal courts could come after him if he admits that he is responsible).

There is therefore a “legal void”, in this situation, because the street artist, who puts the work of street art in the streets without obtaining prior authorisation, “looses” his ownership rights in the art object as well as his copyright in such art object.

There is therefore a “legal void”, in this situation, because the street artist, who puts the work of street art in the streets without obtaining prior authorisation, “looses” his ownership rights in the art object as well as his copyright in such art object.

Is the person who collects this illegal work of street art, in the streets, the new owner of this piece of street art, then?

De facto, yes, because this collector of the illegal work of street art has the physical possession of the art object.

However, this “gatherer” of the work of street art is definitely not the owner of the copyright in the work of street art. Indeed, this copyright was lost when the work of street art was put illegally in the streets, by the street artist.

This “legal void” creates a lot of complications and potentially, high risks of litigation should a sale of a work of street art gathered from the streets, be contested by the creator of this work – the street artist.

I therefore recommend sellers of works of street art collected in the streets to ask for prior written authorisation and agreement from the street artist, or his or her heirs if the street artist is no longer alive. If possible, it would be also very useful to obtain a certificate of authenticity from the artist, in relation to this work of art.

Such agreement with the street artist would most definitely entail money changing hands, between the “gatherer” of the work of art in the streets and the street artist, upon the completion of the sale with a buyer.

However, I advise my clients to reach such an agreement before the sale of the art work, since any early financial arrangement made between the “gatherer” of the work of street art and the street artist is better than long, costly and stressful litigation post-sale of the work of street art.

From the viewpoint of the buyer of the work of street art, I believe that he will want to do some due diligence on the art work, before committing to any sale contract.

The common standards, in relation to due diligence applicable to the trade of an art work, are as follows:

• Checking the vendor’s title. Where doubt arises, a specific check into the Art Loss Register, the ICOM red lists and the database of Interpol might be necessary.

• Checking the goods’ authenticity. Where necessary, request an expert’s certificate.

Street art is becoming an increasingly larger part of the contemporary art market, with sky-rocketing sales at auctions and in the secondary market. However, because of the illegal nature of “putting” a work of street art in the streets, it is more complex now to complete successful and lawful sales transactions of works of street art.

Annabelle Gauberti
Founding partner
Crefovi

[email protected]
 +44 20 3318 9603