Omari Gates
Street art is a contentious topic in Australia, with some considering it a form of vandalism while others view it as a legitimate art form. Although it may be placed either legally or illegally, street art in Australia is generally respected and appreciated by the public. The country's graffiti culture has influenced the development of street art, with Melbourne being dubbed the graffiti capital. Artists and legal professionals have debated the legality and protection of street art, particularly in the case of anonymous artists like Banksy, who seek to balance artistic freedom and copyright enforcement. The distinction between street art and vandalism remains a complex question for local councils, as they navigate preservation and removal decisions.
| Characteristics | Values |
|---|---|
| Street art legality | Street art can be placed either legally or illegally, but once complete it is appreciated, respected, and understood by the public. |
| Materials | There are no limitations on materials. |
| Location | Art must be on the street or viewable by the public. |
| Copyright | Street art is automatically protected as an artistic work under the Copyright Act. Artists own the copyright and some associated "moral rights" once their work is on the wall. |
| Vandalism | Street art is differentiated from vandalism by its composition, the building it is on, and who will view it. |
| Removal | The Melbourne City Council spent $3 million in the last financial year removing 112,000 square meters of what it deemed graffiti. |
| Preservation | The council has applied protective glazes to 50 different works of street art it wants to preserve. |
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What You'll Learn
Melbourne's street art rules
Melbourne is internationally renowned for its street art, with thousands of local and international visitors exploring the city's iconic laneways to experience it. The City of Melbourne recognises the importance of street art in contributing to its vibrant urban culture.
Melbourne's CBD is home to numerous dedicated laneways for graffiti and street art. From stickers to spray paint, Melbourne has made street art one of its signature calling cards. However, street art and graffiti are not only confined to these narrow, permitted spaces, and this can create friction between artists and the council.
Melbourne City Council walks a fine line between encouraging the street art scene and keeping taggers to a minimum. The council has a firm policy that only "legitimate" street art is welcome, not tagging or vandalism. Art must be on the street or viewable by the public, and there are no limitations on materials. It can be placed either legally or illegally but, when complete, it should be appreciated, respected, and understood by the public. Nothing is sacred, and street art is transient, but artists should not paint over something unless they can make it better.
Melbourne City Council estimates that 1.4 million people visit Hosier Lane in Melbourne's CBD every year, and that street art tourism generates $4.5 million for the economy. The council has applied protective glazes to 50 different works it wants to preserve. When asked how the council decides which graffiti is considered art and which is vandalism, Cr Reece said it was a complex question. However, he noted that he sees people taking photographs of street art all the time.
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Street art vs graffiti
The terms "street art" and "graffiti" are often used interchangeably, but they are two distinct forms of public art. Graffiti, which is usually created illegally, is associated with crime, delinquency, and rebellion against authority. It is often word-based and created using spray paint, markers, or other tools on walls or other public surfaces. On the other hand, street art is typically image-based and can be commissioned by organisations or city officials to discourage illegal graffiti. It is generally more accepted by the public and can be found on open walls or buildings.
Graffiti has a long history, dating back to ancient Egypt, Greece, and the Roman Empire. However, modern graffiti as we know it today emerged in the early 1970s in American cities like New York and Philadelphia. The creation of spray paint in the 1960s and two artists, "Cornbread" and "Cool Earl", who began creating art and writing their signatures on the walls and subway cars of New York City, sparked the trend that spread across the country. Despite its negative reputation, graffiti has been used as a vessel for political and social activism, providing a voice for those who have been silenced or omitted from societal conversations.
Street art, on the other hand, gained prominence in the 1970s and 1980s as emerging artists sought to differentiate their work from graffiti. Many of the earliest street artists drew inspiration from or started out as graffiti artists. Today, street art is often commissioned or sanctioned, giving it a more legitimate status than graffiti. It is also typically more complex and time-intensive, contributing to its wider acceptance among viewers.
While the two forms overlap in many ways, the key differences lie in their technique and intent. Graffiti is often associated with a subculture that excludes those who are not part of it, fostering a combative and exclusive environment. In contrast, street art embraces friction and is more inclusive in nature. Additionally, street art tends to be more image-based, while graffiti leans towards word-based expressions.
In cities like Melbourne, Australia, there are rules, both written and unwritten, that distinguish between street art and vandalism. While some forms of street art are celebrated and protected, others are labelled as vandalism, highlighting the ongoing debate surrounding the blurred lines between these two art forms.
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Street art copyright
The question of whether street art is subject to copyright protection in Australia is a complex one that has not yet been resolved in a major precedent-setting case. However, IP lawyers like Jennifer Tutty argue that street art is indeed protected by copyright law. Under the Copyright Act 1968 (Cth), street art is considered an "artistic work", and copyright arises automatically without the need for registration. This means that reproducing, publishing, or communicating a substantial part of the artwork without the artist's permission could infringe on their rights. This includes using photographs of street art for commercial purposes, such as advertising or merchandise.
The challenge of enforcing copyright in street art often lies with the anonymity of the artists, who may struggle to prove ownership of their work. Additionally, street artists often lack the financial resources to engage in lengthy legal battles with large brands or infringers. As a result, most disputes are settled out of court, with infringers making confidential settlement payments to the artists.
To avoid potential copyright issues, photographers and commercial entities should seek permission from the artist whenever possible, especially when the artwork is the main subject of the photograph or when it will be used for commercial purposes. It is also important to keep the use incidental, positioning street art as a background element rather than the focus. Crediting the artist can help meet moral rights obligations, but it does not replace the need for consent.
The use of generative AI tools to modify or replicate street art adds another layer of complexity. AI-generated modifications may breach the artist's moral rights if they distort or misrepresent their original work. Additionally, AI could unintentionally recreate a substantial part of an existing artwork, triggering copyright issues. Therefore, it is crucial to have human review and confirmation that no AI-generated art infringes on existing works.
While the legal landscape surrounding street art copyright in Australia is still evolving, it is clear that street art is more than just vibrant additions to our cities—they are intellectual property that deserves protection and credit.
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Street art tourism
Street art in Australia has been influenced by the graffiti culture of the United States. Artist and director Adrian Doyle notes that the Australian street art scene took off about 20 years ago, with artists going out with "graffiti mops" and the work being very political in the wake of 9/11.
Melbourne is considered Australia's graffiti capital, with Hosier Lane being a key tourist destination. The Melbourne City Council estimates that 1.4 million people visit the lane every year, and street art tourism generates $4.5 million for the economy. The council has applied protective glazes on 50 different works it wants to preserve, and spent $3 million in the last financial year removing 112,000 square metres of what it deems graffiti.
While street art is illegal in many cities, Melbourne has its own rules about what constitutes street art. Artist Drasko Boljevic, who created a piece in ACDC Lane, says: "I call it 'Melting Histories'. It's fun, you know."
Other street art destinations in Australia include Sydney's Newtown and Enmore neighbourhoods, the city of Darwin, which has an annual street art festival, Canberra, Brisbane, and Adelaide.
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Street art as vandalism
Street art is often considered vandalism, particularly when it is done without permission. In Australia, street art has a complex legal status, with no clear precedent to define it as either art or a crime. While some forms of street art are celebrated and protected, others are deemed vandalism and removed at great expense.
In Melbourne, for example, the city council has spent $3 million in a single financial year removing graffiti, while also taking steps to preserve certain works of street art. This blurring of lines between art and vandalism is not unique to Australia, with street artists in other countries also navigating ambiguous legal terrain.
The distinction between street art and vandalism often comes down to context and permission. Street art is typically viewed more favourably when it is done with the consent of the property owner and is considered aesthetically pleasing or meaningful by the public. It is also more likely to be respected and preserved if it is done by a well-known artist or is seen to have artistic merit.
However, the transient nature of street art means that it can be fleeting, even when it is appreciated. This was highlighted by the destruction of several works by Banksy in Melbourne, which occurred despite the artist seeking the protection of Australian law to stop people from exploiting his work. The difficulty of enforcing copyright laws, especially for anonymous artists, further complicates the matter, as artists may struggle to prove their ownership of a work and take legal action if it is defaced or removed.
Ultimately, the perception of street art as vandalism often comes down to individual perspectives and the specific circumstances surrounding the art's creation and placement. While some view it as a form of self-expression and a way to beautify public spaces, others see it as defacement and a nuisance.
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Frequently asked questions
It depends. Most Australian states and territories have laws that allow for the removal of 'graffiti', which can include street art. Whether it is considered art or vandalism is a complex question.
Street art is more like fine art. It considers the composition, the building, who is going to walk past, and who is going to see it. Graffiti, on the other hand, is often seen as combative and exclusive, with a "kill, conquer, destroy" mentality.
It is unclear. While street art is automatically protected as an artistic work under the Copyright Act, it can be difficult for anonymous artists to bring a copyright claim as they need to prove that they are the copyright owner.
Yes, any act of graffiti, even if it is street art, is illegal unless authorised by the Local Council. If charged, you must attend court and should obtain legal advice from a criminal defence lawyer.
Yes, some local councils have services to remove street art or graffiti from private premises at the request of the property owner.
