Can graffiti really be “vandalised”?

A Banksy work in Paris. Image: Getty.

The news that a Valentine’s Day mural by world-renowned graffiti artist Banksy was “vandalised” attracted substantial media interest. The image of a girl firing red flowers from her catapult was defaced by spray paint within hours of appearing on a house wall in Bristol. News reports said measures would be taken to protect the artwork from further damage, but the incident has raised the question as to whether an unsolicited piece of street art can be vandalised.

“Vandalism” is not a legal term – in UK law, it equates to criminal damage and may amount to an offence under section 1 of the Criminal Damage Act 1971 if it were to be an intentional or reckless destruction or damage of property belonging to another.

The law does not, however, draw a clear distinction between great works of street art that have been thoughtfully applied and the casual tagging of a wall. In both cases, if permission has not been sought, then an offence may be committed regardless of the merit of the artwork in question. The Anti-social Behaviour Act 2003 defines graffiti as “the painting or writing on, or the soiling, marking or other defacing of, any property by whatever means” and graffiti artists may be subject to a fine or may be subject to prosecution under the Criminal Damage Act 1971 where more substantial damage has been done.

Several Banksy artworks have been removed or defaced. The Gorilla in a Pink Mask, one of Banksy’s first works on a Bristol social club, and his No Future mural on a Southampton wall were painted over – the first accidentally, and the second in an act of apparent vandalism.

Banksy’s Masked Gorilla artwork in Bristol was hit by vandals. Image: JOHN19701970/Flickr/creative commons.

Damaging property

What amounts to damage to property is broadly construed and includes where that damage is both temporary and minor. For example, the courts have previously held that painting a pavement with water-soluble paints amounted to damaging the pavement despite the fact this could be easily removed. Damaging typically means property has been rendered unusable, a cost will be incurred in repairing the property, or the property has been otherwise been reduced in value.

Though we can normally assume that graffiti amounts to criminal damage, graffiti of artistic merit or monetary worth may instead enhance the value of that property. So much so that homeowners who had Banksy on the side of their home offered that mural for sale in 2007 “with a Victorian house attached”.

The Valentine’s Day mural

What of the defaced Valentine’s Day mural? We know that a Banksy street mural can be worth upwards of £400,000 and it is likely that Banksy is one of the few graffiti artists whose unsolicited works may not be subject to criminal prosecution (though, they still would amount to criminal damage in law).

It is clear the homeowners were receptive to the Valentine’s mural, as they unsuccessfully attempted to protect it with a perspex sheet. One issue requiring clarification here is the actual “type” of property we are concerned with. The wall is part of a building and is therefore part of the land. With the addition of the artwork, the question becomes whether that wall has taken on a new “form”.

For example, has that wall become a form of “personal” property (like a framed painting)? Has that wall, now with the artwork in tow, become a form of “intellectual” property, the likes of which we speak about protection in copyright?

The damage inflicted by spray paint is a more clear-cut case of criminal damage – although whether this amounts to criminal damage of the Valentine’s mural or merely of the wall is a more difficult question. As the damaged “property” in question remains a wall – albeit a highly decorated one – it is likely the secondary graffiti amounted to criminal damage to a wall that had greatly increased in value.

Who owns the mural?

Where graffiti has been applied to the wall of a property, that physical piece of “art” belongs to the owners of the property, who may choose to lawfully remove it or to protect it. If the property is rented – as is reportedly the case for the Valentine’s mural – the graffiti becomes part of the fabric of that building and belongs to the property owner, not the tenants. Ownership of the intangible rights to the artwork (the copyright), however, will remain the property of Banksy as the artist.

Ownership rights have been a subject of dispute. In 2012 a Banksy mural entitled Slave Labour was painted on a property owned by Wood Green Investments to later be removed and offered for sale at auction. There was an outcry by local residents who considered it to be community property. Here, the law is once again clear. Regardless of the intentions of the artist – it is unlikely Banksy intended to gift an investment firm a mural – it clearly belonged to those owners of the property.

Banksy’s Slave Labour mural on Turnpike Lane in north London. Image: DeptfordJon/Flickr/creative commons.

While it is questionable whether the Banksy artwork is capable of being damaged, given that it itself is criminal damage, it is certainly the case that the wall (which will have increased in value as a result of the artwork) will have been further damaged by the act of vandalism.

The question of ownership will remain hotly contested as more Banksy artworks appear and the nature of the property – whether it remains land or becomes personal and intellectual property – will continue to enthuse property lawyers for some time to come.

The Conversation

Mark Thomas, Senior Lecturer, Nottingham Law School, Nottingham Trent University and Samantha Pegg, Senior Lecturer, Criminal Law, Nottingham Trent University

This article is republished from The Conversation under a Creative Commons license. Read the original article.


To build its emerging “megaregions”, the USA should turn to trains

Under construction: high speed rail in California. Image: Getty.

An extract from “Designing the Megaregion: Meeting Urban Challenges at a New Scale”, out now from Island Press.

A regional transportation system does not become balanced until all its parts are operating effectively. Highways, arterial streets, and local streets are essential, and every megaregion has them, although there is often a big backlog of needed repairs, especially for bridges. Airports for long-distance travel are also recognized as essential, and there are major airports in all the evolving megaregions. Both highways and airports are overloaded at peak periods in the megaregions because of gaps in the rest of the transportation system. Predictions for 2040, when the megaregions will be far more developed than they are today, show that there will be much worse traffic congestion and more airport delays.

What is needed to create a better balance? Passenger rail service that is fast enough to be competitive with driving and with some short airplane trips, commuter rail to major employment centers to take some travelers off highways, and improved local transit systems, especially those that make use of exclusive transit rights-of-way, again to reduce the number of cars on highways and arterial roads. Bicycle paths, sidewalks, and pedestrian paths are also important for reducing car trips in neighborhoods and business centers.

Implementing “fast enough” passenger rail

Long-distance Amtrak trains and commuter rail on conventional, unelectrified tracks are powered by diesel locomotives that can attain a maximum permitted speed of 79 miles per hour, which works out to average operating speeds of 30 to 50 miles per hour. At these speeds, trains are not competitive with driving or even short airline flights.

Trains that can attain 110 miles per hour and can operate at average speeds of 70 miles per hour are fast enough to help balance transportation in megaregions. A trip that takes two to three hours by rail can be competitive with a one-hour flight because of the need to allow an hour and a half or more to get to the boarding area through security, plus the time needed to pick up checked baggage. A two-to-three-hour train trip can be competitive with driving when the distance between destinations is more than two hundred miles – particularly for business travelers who want to sit and work on the train. Of course, the trains also have to be frequent enough, and the traveler’s destination needs to be easily reachable from a train station.

An important factor in reaching higher railway speeds is the recent federal law requiring all trains to have a positive train control safety system, where automated devices manage train separation to avoid collisions, as well as to prevent excessive speeds and deal with track repairs and other temporary situations. What are called high-speed trains in the United States, averaging 70 miles per hour, need gate controls at grade crossings, upgraded tracks, and trains with tilt technology – as on the Acela trains – to permit faster speeds around curves. The Virgin Trains in Florida have diesel-electric locomotives with an electrical generator on board that drives the train but is powered by a diesel engine. 

The faster the train needs to operate, the larger, and heavier, these diesel-electric locomotives have to be, setting an effective speed limit on this technology. The faster speeds possible on the portion of Amtrak’s Acela service north of New Haven, Connecticut, came after the entire line was electrified, as engines that get their power from lines along the track can be smaller and much lighter, and thus go faster. Catenary or third-rail electric trains, like Amtrak’s Acela, can attain speeds of 150 miles per hour, but only a few portions of the tracks now permit this, and average operating speeds are much lower.

Possible alternatives to fast enough trains

True electric high-speed rail can attain maximum operating speeds of 150 to 220 miles per hour, with average operating speeds from 120 to 200 miles per hour. These trains need their own grade-separated track structure, which means new alignments, which are expensive to build. In some places the property-acquisition problem may make a new alignment impossible, unless tunnels are used. True high speeds may be attained by the proposed Texas Central train from Dallas to Houston, and on some portions of the California High-Speed Rail line, should it ever be completed. All of the California line is to be electrified, but some sections will be conventional tracks so that average operating speeds will be lower.

Maglev technology is sometimes mentioned as the ultimate solution to attaining high-speed rail travel. A maglev train travels just above a guideway using magnetic levitation and is propelled by electromagnetic energy. There is an operating maglev train connecting the center of Shanghai to its Pudong International Airport. It can reach a top speed of 267 miles per hour, although its average speed is much lower, as the distance is short and most of the trip is spent getting up to speed or decelerating. The Chinese government has not, so far, used this technology in any other application while building a national system of long-distance, high-speed electric trains. However, there has been a recent announcement of a proposed Chinese maglev train that can attain speeds of 375 miles per hour.

The Hyperloop is a proposed technology that would, in theory, permit passenger trains to travel through large tubes from which all air has been evacuated, and would be even faster than today’s highest-speed trains. Elon Musk has formed a company to develop this virtually frictionless mode of travel, which would have speeds to make it competitive with medium- and even long-distance airplane travel. However, the Hyperloop technology is not yet ready to be applied to real travel situations, and the infrastructure to support it, whether an elevated system or a tunnel, will have all the problems of building conventional high-speed rail on separate guideways, and will also be even more expensive, as a tube has to be constructed as well as the train.

Megaregions need fast enough trains now

Even if new technology someday creates long-distance passenger trains with travel times competitive with airplanes, passenger traffic will still benefit from upgrading rail service to fast-enough trains for many of the trips within a megaregion, now and in the future. States already have the responsibility of financing passenger trains in megaregion rail corridors. Section 209 of the federal Passenger Rail Investment and Improvement Act of 2008 requires states to pay 85 percent of operating costs for all Amtrak routes of less than 750 miles (the legislation exempts the Northeast Corridor) as well as capital maintenance costs of the Amtrak equipment they use, plus support costs for such programs as safety and marketing. 

California’s Caltrans and Capitol Corridor Joint Powers Authority, Connecticut, Indiana, Illinois, Maine’s Northern New England Passenger Rail Authority, Massachusetts, Michigan, Missouri, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, Virginia, Washington, and Wisconsin all have agreements with Amtrak to operate their state corridor services. Amtrak has agreements with the freight railroads that own the tracks, and by law, its operations have priority over freight trains.

At present it appears that upgrading these corridor services to fast-enough trains will also be primarily the responsibility of the states, although they may be able to receive federal grants and loans. The track improvements being financed by the State of Michigan are an example of the way a state can take control over rail service. These tracks will eventually be part of 110-mile-per-hour service between Chicago and Detroit, with commitments from not just Michigan but also Illinois and Indiana. Fast-enough service between Chicago and Detroit could become a major organizer in an evolving megaregion, with stops at key cities along the way, including Kalamazoo, Battle Creek, and Ann Arbor. 

Cooperation among states for faster train service requires formal agreements, in this case, the Midwest Interstate Passenger Rail Compact. The participants are Illinois, Indiana, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, and Wisconsin. There is also an advocacy organization to support the objectives of the compact, the Midwest Interstate Passenger Rail Commission.

States could, in future, reach operating agreements with a private company such as Virgin Trains USA, but the private company would have to negotiate its own agreement with the freight railroads, and also negotiate its own dispatching priorities. Virgin Trains says in its prospectus that it can finance track improvements itself. If the Virgin Trains service in Florida proves to be profitable, it could lead to other private investments in fast-enough trains.

Jonathan Barnett is an emeritus Professor of Practice in City and Regional Planning, and former director of the Urban Design Program, at the University of Pennsylvania. 

This is an extract from “Designing the Megaregion: Meeting Urban Challenges at a New Scale”, published now by Island Press. You can find out more here.