Whose Right Is It Anyway?: The Messy Intersection of Graffiti, Street Art, and Copyright Law

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Unlike the drab billboards and miles of gray concrete known to punctuate urban landscapes, the splashes of color typical of murals and street art demand to be seen. Street art’s roots, however, are found in graffiti, a phenomenon where various structures are “tagged” with words, which has been viewed as a public nuisance and plays a symbolic role in the controversial broken windows theory of policing neighborhood blight and crime. Graffiti artists have gradually garnered a countercultural reputation for disrespecting private property rights since they see city structures as blank canvases. Los Angeles, for example, spends $7.5 million a year to eliminate graffiti, removing over thirty million square feet of it from over 600,000 spots in 2015. Authorship is typically accompanied by legal rights, but do ownership interests even exist for graffiti artists and can they enforce them?  Do they even want to?

Cities generally criminalize graffiti as a form of vandalism, but whether an artist’s right to free expression can overcome this is less clear. Cities generally criminalize graffiti with various approaches: Los Angeles considers graffiti to be a nuisance, requiring owners to keep buildings free of graffiti while artists may face fines and imprisonment under the California Penal Code. New York treats graffiti similarly, though both the state as well as New York City permit graffiti if made with the permission of the property owner. Under the Copyright Act of 1976, copyright protection begins upon creation of an original, minimally creative work fixed in some tangible object, such as a wall. This means that graffiti artists may have claims of varying merit of copyright infringement against their work if appropriated or copied without their permission, though these cases incentivize settlements rather than pursuit of litigation, due to a lack of precedent and likelihood of negative press for involved companies. Nonetheless, arguments of fair use and de minimis use constitute possible defenses against such actions. The doctrine of unclean hands is another affirmative defense, in which the illegality of the underlying work leads courts to refuse extending copyright protections to it in common law countries. A notable judicial trend, though, is that even American courts have treated graffiti as potentially copyrightable based on case-specific facts without reaching the questions of the work’s illegality or whether a copyright was actually registered in the work. When an artist considers making a claim for protecting their graffiti against removal or copying, they must balance the benefit of heightened street credibility with the risk that comes with willful exposure to criminal liability. As a result, few have made such claims, reflecting that it may not always be in the best interest of an artist to try to enforce an ownership interest in graffiti.

In some circumstances, however, there may be a payoff to pursuing litigation. Interesting legal developments regarding graffiti arose in the Cohen v. G&M Realty case, also known as the 5Pointz case, in which twenty-one “aerosol artists” were granted statutory damages of $6.75 million after a developer’s “willful” destruction of their art without notice on his warehouse buildings. The Visual Artists Rights Act (“VARA”) applied here to protect the moral rights of artists against the “destruction, mutilation, or other modification” of their work that would be “prejudicial to [their] honor or reputation,” including work that is “of recognized stature,” so long as that work was “a work of visual art.” A work of visual art is a “painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer.” The court found that the visual works that Jonathan Cohen curated were of “recognized stature,” in that they were “meritorious” in nature and “recognized” by “art experts, other members of the artistic community, or by some cross-section of society.” This case held up to scrutiny on appeal to the United States Court of Appeals, Second Circuit, which recently affirmed the award of damages to the graffiti artists. That the developer gave permission to the lead artist to bring others to display their art on his building was a key fact that likely limits the scope of this ruling for future cases, particularly those involving disputes over unwanted graffiti, which is a question the court left unanswered.

Street art is graffiti’s socially-acceptable and frequently-conflated counterpart which has consequently seen a global rise in popularity. Indeed, certain types of street art are even called “post-graffiti,” describing a movement of transition from past and often illegal works in graffiti to legal works of art which has arguably included popular street artists such as Keith Haring, Jean-Michel Basquiat, and Banksy. Street art is characterized by its imagery rather than the words typical of graffiti, but not all street art is authorized. Ironically, a man even faced vandalism charges in Los Angeles for unauthorized vandalism against Banksy’s unauthorized street art. As with the 5Pointz case, courts still grant greater protections to graffiti and street artworks works made with a property owner’s consent. Murals, on the other hand, are another subset of street art specifically characterized by the fact that they are works that are either commissioned or done with permission of the property owner.

Murals have been embraced by various communities throughout the United States as a creative solution to halt the recurrence of graffiti in certain areas. In fact, murals tend not to be tagged or sprayed over by graffiti and street artists due to community respect for the mural artists’ work. For example, in San Francisco, murals rarely get covered in graffiti, with the exception of corporate murals. Some murals are designed to shine a spotlight on issues like mental health. Still others are simply being made for art’s sake, and are sponsored by museums. Yet, the distinctive difference between street art and graffiti is that street art is an art form more frequently expressed with authorization than graffiti, which makes all the difference legally, and this authorization raises its own set of intellectual property questions regarding ownership. Is the artist or the person who commissioned the work the copyright holder? It depends. If the work is commissioned, it may be considered a work made for hire as might a work prepared by an employee operating within the scope of their employment. This is an exception under the Copyright Act which would grant the copyright in the new work to the person who commissioned it and legally treats them as though they created it. If the work falls outside of these definitions, such as if the work was made with permission rather than being contracted for, the artist generally retains rights in the work, including the right of reproduction. However, the general public may have a different view on who has the right to reproduce and monetize such works, especially as influencers and corporations have taken an interest in the appreciable aesthetic value of street art.

Folks who take and post photos of street art for personal use are likely in the clear, but influencers who post for an “indirect or direct commercial purpose” can open themselves up to liability. Since influencers on social media can be paid upwards of $100,000 for posting advertisements, an argument can be made that they indirectly profit off of another’s creative work if they haven’t sought prior permission for reproducing it.

In 2018, Mercedes-Benz tested the limits of copyright protections afforded to street artists after it had posted an advertisement for a vehicle on Instagram while using street art as a backdrop without seeking permission from or granting attribution to its authors. Mercedes-Benz sued these street artists under five causes of action seeking a declaratory judgment that it had not infringed upon their rights, advancing a relatively novel argument in its complaint that the mural was a part of the building it was painted on and thus constituted an architectural work; the suit survived a motion to dismiss by the artists. Under the Architectural Works Copyright Protection Act (“AWCPA”), photography of architectural works that are “ordinarily visible from a public place” do not constitute copyright infringement. As the case continues to move through the courts after consolidation, its implications are significant. An outcome that upholds the street artists’ rights would provide them a higher level of control over how the public is permitted to use their artwork, while a holding favoring Mercedes-Benz would constitute a stripping away of an artist’s ownership rights in restricting commercial abuses of their work.

Seeking permission seems to make the difference when it comes to creating protectable art and using another’s art without having to end up in costly litigation. The threat of litigation to protect interests in unauthorized graffiti can push companies towards settling cases, just as bad faith removal of authorized graffiti can lead to massive damages. Murals and street art are afforded robust protections under copyright law as well, though this may soon change. Until legislatures propose new rules for art removal by property owners and limits to individual and corporate abilities to profit off of art found in public places, just ask for permission first.

About the Author: Jonathan Gonzalez is a 2L at Cornell Law School. He obtained a Bachelor’s degree from the University of California, Davis in French and Political Science – Public Service and worked previously at Cornell’s Legal Information Institute. 

Suggested Citation: Jonathan Gonzalez, Whose Right Is It Anyway?: The Messy Intersection of Graffiti, Street Art and Copyright Law, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Feb. 1, 2020), https://live-journal-of-law-and-public-policy.pantheonsite.io/whose-right-is-it-anyway-the-messy-intersection-of-graffiti-street-art-and-copyright-law/.