The Banksy removal - When street art meets property rights

Legal thoughts on the 'strappo' of 'The Migrant Child' in Venice

The removal last year of a Banksy in Venice has reignited a longstanding legal debate at the intersection of property law and copyright: when street art is created without permission on someone else's wall, who actually owns it? And can the property owner legally remove it?

In May 2019, during the inauguration of the Venice Biennale, a work attributed to Banksy appeared depicting a migrant child with its feet and part of its legs immersed in the water of a canal, wearing a life jacket and holding a flare emitting pink smoke. In early 2025, to preserve its integrity considering local climatic conditions and to allow restoration of the historic palazzo owned by Banca Ifis on which it was created, it was announced that the work would be removed by "detaching" it from the surface; the operation was carried out on the night of 23-24 July 2025. The restoration was completed in early 2026; the work is currently held at an undisclosed location and may soon be returned to its original site, this time with protective measures to shield it from the effects of water, salt air and wind.

Ownership, Copyright and Property Rights

Street art is a form of artistic expression realised in public spaces, often without the consent of the building owner, raising important legal questions about the coexistence of the artist's copyright with the property rights of the owner of the building on which the work is created. Amongst the intrinsic characteristics of street art works is their realisation on someone else's building, which in some cases is not preceded by the owner's consent, distinguishing between authorised or legal works and unauthorised or illegal works.

The ownership question has been analysed precisely in consideration of the inseparability between the paint and wall, qualifying the artistic fact largely as a case of accession of movable property to immovable property; specifically, under Article 936 of the Italian Civil Code, a work created on another's land with one's own materials becomes the property of the owner of the underlying property, unless otherwise agreed between the parties.

Although the surface owner acquires the property right and therefore the right to fully dispose of the work, the artist retains—even in the case of illegal works—moral rights and exploitation rights under copyright, including the right to paternity of the work and to its integrity; this latter right, in particular, may give the artist the power to oppose any deformation, mutilation or modification that could prejudice their reputation.

However, in unauthorised works, copyright is often subordinated to property rights, allowing the building owner to intervene without the need for the artist's consent to protect their own right.

The Site-Specific Nature and the 'Strappo' Technique

What makes street art particularly complex from a legal standpoint is its inherently site-specific nature. The work must be considered a "unique exemplar" by virtue not so much of the depiction itself, but rather of the choice of the specific urban context in which it was placed, which participates in the message the artist wants to convey.

Whilst it is undisputed that the property owner can decide to detach the work (as well as destroy or cover it), with respect to street art one cannot ignore the site-specific character that distinguishes it; detaching the work from the context in which it is located would imply decontextualisation from the place for which it was conceived and created, with a consequent change in the very nature of the expression, as the place assumes meaning, effectively becoming an element of the work.

"Strappo", the technique of removing a work from its original surface to relocate it elsewhere, when applied to street art works, raises a series of questions linked to the site-specific characteristic intrinsic to them. The removal operation marked a turning point also from a legal perspective: the detachment made tangible the tension between the full exercise of proprietary prerogatives and the site-specific value of the mural, prompting a question about the fate of the artist's moral rights and the collective interest in enjoying the work in its original urban context.

A Comparative Perspective

The challenges surrounding street art ownership are not unique to Italy. In Germany, under Article 946 of the German Civil Code (BGB), the building owner is the owner of the work, as street art—being by its nature applied to the wall of the building—becomes an integral part of it; consequently, the sale of street art works detached from the original surface would not present particular problems from a purely civil law perspective, as the building owner is free to dispose of it.

In France, street art finds protection in copyright, provided it is original and reflects its author's personality, regardless of its nature, form or use; under French copyright law, the intellectual property of a work is independent of the ownership of the material support on which it is created.

In Canada, the Supreme Court addressed whether the transfer of an artwork from one medium to another (paper to canvas) constituted a "reproduction" capable of infringing copyright under Canadian copyright law. The majority (4-3) held that the mere physical transfer of the ink layer from one substrate to another did not amount to "reproduction", as the process began with a single poster and ended with a single poster, with no multiplication of copies, thus not violating copyright law.[1] 

In the case of the Migrant Child, what is at stake is the integrity of the work in its overall dimension — not merely as an image, but as an inseparable unity of content, surface and context.

Looking Forward

The "Migrant Child" case raises crucial questions regarding the tension between property rights and copyright in the context of street art; the work, whilst being an integral part of an urban space, faces a legal conflict that highlights the difficulty of protecting the work's integrity and respecting the artist's rights in a context where works are often created without the surface owner's consent. In this regard, the announced intention to return the work to its original location—albeit with protective measures—appears to represent the most balanced solution, preserving the site-specific dimension that is constitutive of the work's meaning whilst ensuring its material conservation; conversely, a permanent relocation to a different venue, however prestigious, would risk reducing a living urban intervention to a mere museum exhibit—severing the link between the work and the specific urban context for which it was conceived, which, as discussed above, participates in the artistic message and may itself constitute an element of the work—with consequent implications for the artist's moral right to the integrity of the work as originally conceived.

The analysis demonstrates how street art represents a challenge for traditional law, raising questions about who should really dispose of a work that, although created on a private surface, is conceived for public space and collective enjoyment. The question of removal and conservation of these works does not exhaust itself in the balancing between copyright and private property alone, but involves a broad spectrum of legal problems embracing different sectors of law, highlighting the complexity of regulating this art form.

As cities worldwide grapple with similar questions—from Banksy's "Slave Labour" in London to Blu's self-destruction of his murals in Bologna—the need for clearer legal frameworks becomes increasingly apparent. The debate continues: is street art public patrimony, private property, or something altogether more complex? The case of 'The Migrant Child' illustrates this tension with particular clarity: the completion of its restoration and the prospect of its return to the original site—protected but in situ—may offer a model for reconciling conservation imperatives with the site-specific nature that defines street art as an art form.

 

About the authors:

Filippo Maria Federici and Ilaria Cristina Gioffrè are lawyers specialising in art law.

 

This article is based on research originally published in Arte e Diritto, Issue 2-2025.

[1] Théberge v. Galerie d'Art du Petit Champlain inc. [2002] 2 SCR 336, 2002 SCC 34 (Supreme Court of Canada). The dissent argued that fixation of the work in a new medium constituted reproduction, regardless of whether the total number of copies had increased: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1973/index.do.

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