Art Tech Law Seminar: Street Art a Criminal Act?
Street Art Illicit Art Criminal Act?
Monin Ung, Managing Partner of MUNG Legal, discussed the competing legal rights of private and public property, artistic copyrighted creations and cultural preservation. Let’s get this straight, damage to property belonging to someone else is an offence and a crime. To what extent a criminal act should be excused or given leniency under the law is, often, a matter of public opinion.
Much of public opinion has embraced street act for its cultural and aesthetic values it adds to their cities. The impact of street art on contemporary culture is beyond debate. Museums exhibit it, galleries are commercialising it, brands have incorporated it.
Not everyone can legitimise street art the way Banksy did. The removal of Invader’s giant Pac-man installation on King’s Road in Hong Kong drew a public outcry in 2014. The Highways Department, which maintains the “integrity of the road network with particular emphasis on safety and serviceability”, reiterated that unauthorised materials or graffiti on public facilities are “unlawful” and will be promptly removed.
In 2017 New York a judge has awarded US$6.7m to 21 graffiti artists who sued after their works were destroyed on buildings torn down to make room for luxury apartments in Queens.
Judge Frederic Block noted there was no remorse from the owner of the warehouse buildings.
The graffiti was ruined with a surprise overnight whitewash of the building on the orders of the owner in 2013, and the buildings were torn down a year later.
5Pointz had been an international graffiti mecca since the 1990s, as tourists came from around the world to see the spectacle and New Yorkers saw the towering graffiti art daily from the elevated tracks of the subway train.
The trial was a key test of the Visual Artists Rights Act (VARA), which grants visual artists certain “moral rights” for their work. Previous VARA cases rarely made it to trial, and were instead settled privately.
The judge said he would not have assessed so much in damages if the owner had awaited his permits and demolished the art 10 months later than he did. The judge warned that artists that the law regarding private property had to be observed and said: “The building, unfortunately, is going to have to come down.”
Since the talk a US Appeals Court decision issued on 20 February 2020 upheld victory for the street artists. A three-judge panel concluded that the Brooklyn federal judge was correct to award the damages against developers who destroyed the aerosol artwork.
On the subject of criminality, what of the “theft” and destruction of the banana worth US$120,000 taken off the wall of an exhibition by performance artist David Datuna? Topic for discussions for another day.
Appreciation goes to playground.work co working space for hosting this talk!
Art Tech Law Seminar: Art Theft
Art Theft Rakes in US$6-8 Billion Annually
Art Theft Rakes in US$6-8 Billion Annually Art theft statistics say that more than 50,000 pieces of artwork are stolen each year around the world and the black market for stolen art is valued at between $6 billion and $8 billion annually.
Although there is no register of ownership of art such as for cars, owners and insurers can register art on a positive database held by the Art Loss Register (www.artloss.com).
If an artwork is stolen, the owner or insurer can register it as such with any of the lost or stolen art databases such as the Art Loss Register or Interpol (www.interpol.int/Crime-areas/Works-of-art/Works-of-art). The stolen art database of the Art Loss Register is not publicly available but it can be searched on request. Some data on the Interpol database of stolen works of art, including the most recent stolen works of art reported, can be searched by members of the public.
Good-faith acquisition of stolen art
In law, the thief does not possess ownership to the stolen art and will be unable to pass on good title to a buyer. However, under English Law, the statute of limitation comes to the rescue of the buyer in good faith, in that the ownership of the rightful owner whose artwork was stolen is extinguished after six years from the date of the first acquisition in good faith.
This applies regardless of when the rightful owner discovered or could have discovered the whereabouts of the artwork. If the rightful owner’s title has expired, the current holder of the artowkr will typically have possessory title to the artwork. The party relying on his good faith has the burden of proving good faith. Good faith is a matter of fact left to the discretion of the courts. In assessing good faith, a court will typically consider the circumstances of the buyer’s acquisition, including the due diligence carried out with regard to the buyer’s expertise and resources.
In Hong Kong, where goods are openly sold in a shop or market in the ordinary course of the business of such shop or market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller. Art theft was one of the various art market risks discussed by Monin Ung, Managing Partner of MUNG Legal at the Hong Kong Law Society CPD Seminar held at Commons co working space.
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11/F, 244-248 Des Voeux Rd
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