Are you permitted to use street art or buildings in public spaces in your advertising campaigns?

Many companies use urban landscapes as a backdrop for their marketing materials, but this often raises questions about copyright of visible works of art or buildings. In Bekgia, you may reproduce and communicate works that are permanently in public spaces, such as street art or buildings, also for commercial purposes. This falls under the so-called ‘panoramic freedom,’ provided that you depict the work as it is there, do not manipulate it digitally and pass the so-called ‘three-step test.

The facts and legal context

A recent dispute before the Court of First Instance in Liège, Liège Division, focused on the scope of this exception. A visual artist (‘David Bruce’), known for his murals (frescoes), sued the car brand Seat and an advertising agency.

The reason was twofold:

• The international campaign: This used a photograph of a vehicle Seat Ibiza with the artist's mural in the background. The fresco was visible as it appeared in the street scene, with no changes.

• The Belgian campaign: The photo was digitally edited for a specific promotion. The smileys in the artwork were modified to display the price (‘€9’).

The artist claimed a violation of his copyright (both economic rights and moral rights) and demanded compensation and an injunction. The defense invoked for the unaltered photo the panorama-exception (Art. XI.190, §2/1° Code of Economic Law or CEL).

The decision and the law

The president of the court ruled in a judgment of 16 December 2025 in favor of the advertisers with regard to the international, unmodified campaign. The court confirmed that this application met the legal conditions of the panorama exception.

According to Article XI.190, §2/1° CEL, an author may not oppose the reproduction and communication of works of visual, graphic, or architectural art if two cumulative conditions are met:

1. The work was created to be permanently placed in public spaces.
2. The reproduction or communication takes place of the work as it is located there.

The court found that the mural is permanently visible from the public highway. Crucial was the judgment that the photo showed the work in its “natural habitat” as part of the urban decor. Because the photograph did not isolate or artificially reconstruct the work, the reproduction remained faithful to reality.

With regard to the edited photo (in which the smileys were modified), the defense itself acknowledged that this did not fall under the exception, as the work had been altered. However, the artist's claim was still rejected on the grounds that there was no risk of repetition, as the campaign had already been discontinued.

Legal analysis and strategic advice

This ruling provides essential insights for marketing agencies, photographers, and businesses.

1. The ‘three-step test’

It is not sufficient for a use to merely meet the definition of the panorama exception. As confirmed in the judgment and legal doctrine, the court must always carry out an additional check: the so-called three-step test(see Article XI.192/3 CEL). This test serves as a safety net for the author.

The court applied this test to decide whether the advertising campaign was permissible. Whether that application was persuasive was disputed. After all, the Court requires a strict interpretation of exceptions to copyright law, and the mural here was not accidentally featured but visibly chosen as an aesthetic eye-catcher for the car advertisement.

• Is this a special case? Yes, the reproduction of a work that is permanently placed in public space is a specific exception defined by law.
• Will the normal exploitation of the work be compromised? The judge ruled that the mural is inextricably linked to the street wall and is not intended for autonomous commercial exploitation (such as the sale of posters of the work itself). The mere fact that the work is visible in the background of an advertising photo for a car does not deprive the artist of his own sources of income.
• Are the legitimate interests of the author not unreasonably prejudiced? This is often the stumbling block. The artist argued that he did not want to be associated with the car brand. However, the judge ruled that the three-step test does not serve to protect “mere discomfort.” There was no damage to the reputation of the work, nor was it distorted or placed in a derogatory context. The association was purely documentary, not symbolic.

This reasoning somewhat clashes with the intention of the Belgian legislature, which wanted to reserve panoramic freedom primarily for the individual taking photographs in public spaces, not for commercial advertising campaigns.

2. The requirement of ‘permanently in public places’

The exception only applies to works that are created to remain permanently in public spaces. Examples include statues, buildings, and permanent graffiti. Temporary installations, such as advertising posters or temporary exhibitions (building wraps), are generally excluded. The location must be a “public place,” such as streets, squares, and parks, but not necessarily the interior of museums or buildings.

Moreover, the permanent nature of a mural is not evident: a fresco is by definition subject to external circumstances such as vandalism, weather or removal by the owner of the wall. In a judgment dated July 5, 2023 the French panoramic freedom for a street art work just because of that aleatory character.

3. Integrity of the work: “as it is there”

This is the biggest stumbling block in practice. The legislator requires that the work be presented in its context.

• Permitted: Photographing a car in front of a graffiti wall, with the wall serving as a backdrop. Zooming in and out (framing) is permitted, as long as the work is not taken out of context.
• Not permitted: Digitally manipulating the work (as in the Belgian campaign in the judgment), changing the colors, or “cutting out” the work to place it on a white background or in a different setting. Such manipulation infringes on the moral rights of the author.

Specifically for the Belgian campaign (in which the smileys were replaced by “9 €”), there were two independent grounds for infringement under Art. XI.165, § 2 WER: violation of the integrity right (digital alteration of the work) and violation of the paternity right (no mention of the artist's name). These moral rights are distinct from panoramic freedom: even if the patrimonial exception were to apply, moral rights remain protected. That the court did not assess these grounds substantively but dismissed the claim entirely on the absence of risk of repetition has been criticized.

4. Commercial use: permitted

The Belgian legal text does not explicitly exclude commercial use, unlike the French legislation (art. L.122-5, 11° CPI). This ruling therefore accepts that, provided the conditions are met, you may use a photograph of a public work of art in a commercial context - in a leaflet, on a website or in an advertisement.

5. The risk of repetition: a second disputed pillar

In addition to panoramic freedom, the court supported its rejection on a second ground: the lack of an objective risk of recurrence. This assessment is at least as controversial.

According to established cassation case law (Cass. June 25, 2015), a cessation order can only be refused if the risk of repetition of the unlawful act - or of the practice underlying it - is objectively excluded. Case law applies this criterion strictly: circumstances that depend on the will of the defendant (voluntary cessation, unilateral commitments, the expiration of a marketing cycle) do not in principle suffice.

Here, however, the court ruled that the combination of marketing cycle, replaced campaigns and absence of actual commercial will amounted to a ‘structural impossibility of repetition. However, these elements are part of the defendant's commercial rationality, not a material impossibility. A new campaign with the same mural remains perfectly technically possible - art. XI.165 WER covers any reproduction, ’by any means and in any form.“ Moreover, the Supreme Court distinguishes the concrete act from the underlying practice (Cass. June 17, 2005): discontinuing one campaign does not preclude future similar campaigns.

Practical advice:

Best practice: Although the ruling accepts commercial use, it remains legally safest to seek prior permission from the artist when a work is purposefully selected for its aesthetic value in an advertising campaign.

For advertisers: You may use public spaces as a free backdrop, but please respect the reality. Avoid Photoshop edits to the artworks themselves. Ensure that the artwork serves as a background and not as the main object of your sale (for example: do not sell posters of just the artwork).

For authors: By permanently placing your work in the public domain, you accept a restriction of your exclusive rights. However, you retain your moral rights: your work may not be mutilated or placed in a context that damages your honor or reputation.

FAQ: Frequently Asked Questions

May I use a photo of the Atomium for commercial purposes?
Yes, since the introduction of freedom of panorama in 2016, you may distribute photos of the Atomium (and other permanent buildings), including for commercial purposes, as long as the building is depicted as it appears in public space.

May I digitally modify street art for my campaign?
No. The exception only applies to the work “as it is located there.” Digitally altering the work (for example, changing colors or adding text to the artwork) is not covered by the exception and requires the artist's permission.

Does this rule also apply to temporary art installations?
No, the law requires that the work be created for permanent placement in public places. Temporary exhibitions or events are generally not covered by this exception.

Conclusion

At first glance, this ruling gives broad creative freedom to photographers and advertisers, provided that the integrity of the street scene is respected. The key word remains authenticity: show the work as it is, where it is - any digital manipulation or decontextualization leads toward copyright infringement. The ruling is at least criticizable in terms of the application of panoramic freedom as the assessment of the risk of repetition, and the author's moral rights (paternity, integrity) remain intact anyway. For advertisers who deliberately choose street art for its aesthetic value in a commercial campaign, prior permission remains the safest course.

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