Graffiti and “freedom of panorama”

Is it possible to “freely” exploit works located on public roads?

Graffiti has become one of the main forms of expression for a whole generation of artists since the end of the 20th century. Emblematic works have become part of the identity of neighborhoods and cities around the world.

Is it possible to capture or photograph the works of Blek La Rat, Swoon, Cabaio Spirito, Eduardo Kobhra, Lady Pink or VascoBazko, to name a few iconic and emblematic artists, just because they are in the street and use them freely?

In many countries there is a “freedom of panorama“, a limitation to the right of authors that allows the reproduction, distribution and public communication of works located on public roads and, according to which it would be legitimate to photograph a work located in the urban environment, to publish it and even to exploit it.

Spain, the United Kingdom and Germany provide for this possibility. Italy, Greece and France – where the design of the night lighting of the Eiffel Tower cannot be freely captured and must be authorized by the Society for the Exploitation of the Eiffel Tower – do not, and require the authorization of the author to photograph or capture his works and publish them.

For graffiti and other expressions of urban art, the use of public space is essential and understanding this issue is particularly important.

In Chile, the Intellectual Property Law contains a provision according to which the reproduction by photography, drawing or any other process, of monuments, statues and, in general, artistic works that “permanently adorn” squares, avenues and public places, would be free and not subject to remuneration, being lawful the publication and sale of reproductions.

From this, some might understand that the free exploitation of the works of urban art is guaranteed, but the truth is that this rule must, in accordance with the treaties signed by our country, be interpreted properly. In this sense, to understand that the commercial exploitation of this type of works should be allowed unconditionally would imply, as Professor Julián LÓPEZ RICHART states in his work “Y el vandalismo se hizo arte: la protección del grafiti por el derecho de autor”, “to empty practically of content the exploitation rights over them, outside the right of transformation due to the intimate connection that this has with the moral right to the integrity of the work”.

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