Murals, Graffiti, and the Law: Art on the Edge

Introduction

Street art contributes significantly to the cultural and visual identity of urban landscapes. It encompasses a wide range of works. This paper will focus on two types of street art: murals and graffiti. While the first is typically commissioned or created with the permission of the property owner, city, or organization, the latter is often unauthorized and done without permission, making it a form of vandalism under the law. Under Canadian copyright law, moral rights protect an artist’s connection to their work, regardless of ownership. This paper examines the extent to which mural and graffiti artists can assert moral rights in British Columbia and proposes amendments to the current legislation.

Moral Rights in Canada: The Legal Framework

In Canada, copyright subsists in an original artistic work the moment it is created, regardless of its legality^[1]. Canadian moral rights stem from the French legal tradition of droit d’auteur, which emphasizes the personal connection between an author and their work. Moral rights are distinct from economic rights under the Copyright Act. As described by the Supreme Court of Canada, “They treat the artist’s oeuvre as an extension of his or her personality, possessing a dignity which is deserving of protection”^[2]. While economic rights allow the copyright holder to reproduce or distribute a work^[3], moral rights focus on protecting the attribution of the work, the right to remain anonymous or use a pseudonym, and the right of integrity, which is infringed if the work is “distorted, mutilated, or otherwise modified” in a way that prejudices the artist’s honor or reputation. If a mural or graffiti qualifies as a “painting, it would be sufficient to show that the work was distorted, mutilated or otherwise modified to trigger a presumption of a moral rights violation under the Copyright Act^[4]. Remedies for infringement include injunctions, damages, accounts, and delivery up. Moral rights cannot be transferred but may be waived. They last for the duration of the artist’s copyright—generally, the artist’s lifetime plus 70 years—and revert to the artist’s estate for 25 years after their death^[5].

Property vs. Art: The Ownership Dilemma

A key conflict in street art preservation arises between property owners’ rights and artists’ moral rights. When a mural is commissioned, ownership of the physical surface remains with the property owner, while moral rights generally stay with the artist. This distinction raises questions about whether property owners can legally distort, mutilate, modify, or even remove the artwork without violating the artist’s moral rights. Consequently, moral rights can be seen as limiting what owners can do with their private property.

Legal Precedents

Canada’s Approach

Canada has seen limited high-profile cases on moral rights. In the landmark decision of Snow v. The Eaton Centre Ltd.^[6], the artist, Michael Snow, successfully argued that placing Christmas decorations on his sculpture distorted his artistic vision and harmed his reputation. The court upheld his right to prevent modification. As the Supreme Court of Canada later described in Théberge, 

“…even though the flying geese had been sold and paid for, the artist was able to reach across the ownership divide to take action against a successor owner not for infringing his economic rights but for violating his moral rights [emphasis added], i.e., for perpetrating what both he and the judge regarded as an attack on the artistic integrity of the descending flock”^[7].

Canadian courts have yet to address whether graffiti artists can claim moral rights over their unlawful work. However, in Aldrich v. One Stop Video Ltd.^[8], the court considered whether copyright could subsist in works deemed obscene, concluding that it can. Nevertheless, the court limited the available remedies for the infringement of such works, highlighting that public policy concerns can restrict the scope of protection even when copyright exists.

Lessons from the U.S.

Although the U.S. joined the Berne Convention, it opted out of the moral rights provisions under Article 6bis. Instead, moral rights in the U.S. are addressed through a combination of copyright law, contract law, and state-level protections, with limited federal recognition under the Visual Artists Rights Act (VARA) of 1990^[9]. VARA provides artists with the rights of attribution and integrity. The right of integrity includes the right to prevent the intentional distortion, mutilation or modification of a visual artwork in a way that prejudices the artist’s honor or reputation and the right to prevent the intentional or grossly negligent destruction of a work of recognized stature^[10]. This is a more limited moral rights regime than that found in Canada and Europe. To establish that a work qualifies as “recognized stature,” the artist must demonstrate that the artwork has stature, and that this stature is acknowledged by art experts, the art community, or a cross-section of society. 

In English v. BFC&R^[11], artists sought an injunction to prevent the unauthorized destruction of their unauthorized graffiti in a public garden, relying on VARA. The district court held that VARA does not apply to unauthorized artwork permanently affixed to a structure for public policy considerations, reasoning that:

“[O]therwise parties could effectively freeze development of vacant lots by placing artwork there without permission. Such a construction of the statute would be constitutionally troubling, would defy rationality and cannot be what Congress intended in passing VARA.”^[12]

This decision suggests that public policy considerations prevent graffiti artists from asserting moral rights over works created illegally or without the property owner’s consent. While VARA offers significant protections for artists, it generally does not extend to unauthorized graffiti.

However, when it comes to murals, artists have won moral rights cases. In the leading decision of Castillo v. G&M Realty, 2020 (“5Pointz”)^[13], artists had permission to paint on the 5Pointz building, a well-known graffiti hub in New York.Years later, the building’s owner announced plans to demolish the property and replace it with luxury apartments. In 2013, without notifying the artists, the owner ordered the destruction of the murals. The artists sued, claiming that their works had been destroyed in violation of their moral rights under VARA, specifically the right to prevent destruction of their artwork. 

The District Court ruled in favor of the artists, awarding $6.75 million in damages. It found that VARA protected murals of “recognized stature” from destruction. The owner appealed to the Second Circuit Court of Appeals which upheld the district court’s decision and confirmed that the murals were “works of recognized stature”, given their prominence in the art world and the significant public display. This ruling set an important precedent for the protection of murals under VARA, affirming that in the U.S., street artists have a moral right to prevent the destruction of their works even if they were painted on someone else’s private property. Although Canada lacks a direct equivalent, this case underscores the potential need for clearer legal frameworks governing mural preservation.

Consequences of the Current Law in Canada

The intersection of artists’ moral rights and property law presents significant challenges, particularly when street art is affixed to private property. Under the Copyright Act, moral rights remain with the artist even if copyright is transferred. This means that a property owner may own the physical structure bearing the artwork, but the artist retains the right to prevent its mutilation, modification, or distortion in a way that prejudices his honor or reputation. The Copyright Act does not distinguish between original and subsequent property owners. Therefore, when ownership of the property changes hands, the new owner may unknowingly inherit obligations to the artist, potentially leading to legal disputes. From a property law perspective, however, property owners have the right to modify their property unless a legal restriction (e.g., a covenant) prevents them from doing so. Consequently, they are not obligated to keep the artwork.

With respect to graffiti, strong public policy considerations justify discouraging artists from creating unauthorized works. Extending moral rights to illegal artwork could legitimize vandalism and incentivize unauthorized graffiti on buildings slated for demolition. Unlike obscenity, which is limitedly protected based on its content, graffiti should be denied protection due to its unauthorized nature and its direct infringement on property rights.

Proposed Amendments to the Copyright Act

To better balance the rights of property owners with the artists’ moral rights, as well as the public interest in preserving valuable works of art, the Copyright Act could be amended in some of the following ways:

1. Exclude Unauthorized Works from Moral Rights Protection – The Copyright Act should explicitly state that only lawful artistic works qualify for moral rights protection, preventing graffiti artists from claiming protection for illegal acts.
2. Introduce a Strict Legal Test for Murals – Similar to VARA, murals should meet a high threshold of recognition (by experts, the art community, or the general public) to qualify for moral rights protection. Consultation with a broad-based community ensures that judges will not make subjective decisions about the artwork’s value and cultural worth.    
3. Automatic Expiration of Moral Rights Upon Property Transfer – Moral rights should lapse upon property transfer unless the artist and the new owner agree contractually to extend them.
4. Mandate Disclosure of Moral Rights – Alternatively, sellers should be required to disclose any existing moral rights before selling a property, similar to the obligation to disclose unregistered easements or rights-of-way. Failure to disclose would grant the buyer with the options to rescind the sale or seek damages from the seller for costs incurred due to a moral rights dispute.
5. Establish a Registration System – Artists should be required to register their moral rights if they wish to enforce them against future owners.

Conclusion

Moral rights provide an essential safeguard for artists, but their enforcement in mural and graffiti art on private propertyremains legally complex. While commissioned mural artists may have a stronger legal claim, graffiti artists face greater challenges in asserting their rights. The Copyright Act lacks clarity in this area, creating challenges for property owners seeking to renovate and for new owners who may unknowingly inherit obligations to preserve existing artwork. While moral rights protect artistic integrity, they must be balanced against property owners’ rights to manage their land. 

Implementing the proposed reforms could help strike this balance. These changes would reduce legal uncertainty, facilitate property development, and ensure transparency in real estate transactions. By clarifying the law, Canada can better protect both creative expression and property rights in British Columbia.

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^[1] Copyright Act, RSC 1985, C-42, s. 5.

^[2] Théberge v. Galerie d’Art du Petit Champlain Inc. (2002 SCC 34), at para 15.

^[3] Copyright Act, RSC 1985, C-42, s. 3.

^[4] Copyright Act, RSC 1985, C-42, s. 28.2.

^[5] Copyright Act, RSC 1985, C-42, s. 14.1, 14.2, 28.1, and 34(2). 

^[6] Snow v. The Eaton Centre Ltd. (1982), 70 CPR (2d) 105 (Ont HCJ).

^[7] Théberge, supra note 2, at para 18.

^[8] Aldrich v One Stop Video Ltd, [1987] BCJ No 1035.

^[9] Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (1990).

^[10] Moral Rights in Street Art: The 5Pointz Story – Revisited, March 2, 2020, see: https://artlawpodcast.com/2020/03/02/moral-rights-in-street-art-the-5pointz-story-revisited/

^[11] English v. BFC&R E. 11th St. LLC, No. 97 CIV. 7446 (HB), 1997 WL 746444, at *1 (S.D.N.Y. Dec. 3, 1997), aff’d sub nom. English v. BFC Partners, 198 F.3d 233 (2d Cir. 1999).

^[12] Unchartered Territory: Enforcing an Artist’s Rights in Street Art, HHR Law, January 11, 2017, see: https://www.hhrartlaw.com/2017/01/unchartered-territory-enforcing-an-artists-rights-in-street-art/

^[13] Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020).