The Writing is On the Wall – Who Owns Rights in Graffiti?

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Graffiti can be an eyesore, but more and more, with some graffiti artists gaining extreme popularity, graffiti has also become a recognized art form. Street art by the artist known as Banksy has been carefully removed from buildings and sold at auction for hundreds of thousands of dollars. Most property owners would feel blessed to wake up to such an act of vandalism. Banksy has been attributed with the quote “copyright is for losers,” never seeking to enforce any ownership rights in the works left behind on walls. But could a graffiti artist claim ownership in a painting that, at its core, was an illegal act of vandalism?

As street art gains popularity, companies often try to capture and profit from the medium. Beyond Banksy, many works of street art have gained recognition within their communities, with petitions often being circulated to prevent their destruction. Where there is popularity and recognition, there is always a profit to be made. Publishers have released books of photographs, documenting graffiti in inner cities. Fashion houses have turned graffiti on walls into print designs for t-shirts, dresses and other apparel. Some companies, wanting to capture the “street cred” atmosphere of the medium, have utilized popular graffiti scenes as part of their interior design in stores and offices.

Commercializing the artwork illegally left behind on walls most often runs counter to the intentions and desires of the graffiti artist. After all, when you break the law to paint a graphic on a wall you do not own, you do not expect to ever profit from that artwork. Indeed, you most likely expect that your handiwork will be destroyed, or painted over by other artists, quickly. That said, these artists also bristle at the notion of someone else profiting from their work.

Copyright law bestows all rights upon the “author” or creator of the work of art. Copyright ownership exists separately from the ownership of the tangible medium on which the work exists. Believe it or not, that photograph on your phone of you and your family that you had the waiter take at the restaurant – yes, the waiter owns the copyright, not you. The rights granted to the artist, or author, of the work include the exclusive rights to make copies of the work, distribute copies of the work and make derivatives of the work (i.e. alter or build upon the original work).

Obviously, you own your phone. If you choose to delete the photo off your phone, sell your phone with the photo on it, or throw your phone in the trash, the waiter has no recourse against you over the loss of his work. Likewise, most commentators agree that the owner of the vandalized wall may do with their wall what they wish (knock it down, paint over it, etc.). But what rights does that wall owner, or any third party, have to take the work of graffiti and copy it or make other uses of it in photographs, on clothing, in calendars, etc.?

Very few graffiti artists have taken action against those who copy their works, largely because they would have to come out from under a veil of anonymity – step out from behind their “tag” and possibly face prosecution for their acts of vandalism. It also runs counter to the graffiti “no respect for property rights” culture to step into a court to enforce intellectual property rights.

However, some have taken that bold step of attempting to enforce their rights. One artist, Hiram Villa aka UNONE, sued the publisher of Tony Hawk’s Pro Skater 2 Official Strategy Guide because it contained a photograph of one of Villa’s murals, without his permission. Another street artist, David Anasagasti aka Ahol Sniffs Glue, sued American Eagle over the alleged use of his artwork in an advertising campaign. In a similar vein, Joseph Tierney aka Rime, sued Moschino fashion house over the alleged use of his work on clothing.

As these cases all settled, and other pending ones have yet to be decided, the legal question remains as to whether these artists can enforce their copyright in graffiti. The defendants in these cases have all argued, consistent with the “unclean hands” theories of American juris prudence, that vandals should not be allowed to profit from their crimes. Many commentators, however, have argued that copyright law has never looked to whether the author was behaving legally while creating the work to determine whether or not a valid copyright existed. Going down this path could end in bizarre results: the songs written while the songwriters were taking illegal drugs could no longer being subject to protection; the photograph of a pristine beach, snapped while trespassing on someone else’s property, would lose its copyrightable status under the law.

Indeed, basing a street artist’s rights in their work on whether or not they were acting illegally at the time they painted it would open up a Pandora’s Box of issues for courts. In many communities you will find property owners who have openly consented to street artists decorating their walls. Each case would require a special inquiry into whether the artist had permission, or whether they were breaking any other laws at the time of painting. Few believe that courts will go down the path of refusing to grant copyright protection in graffiti to the artists. With so few artists pushing the issue, however, it may take some time for the issue to be fully settled.

Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.

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  • Pete Prue

    As a photographer I would love to know how the issue of copyright applies when I take an image of graffiti or street art, subsequently alter that image within Photoshop, and then wish to sell that image as a print or a tee shirt…