Legal Rights for Illegal Art? Copyright Protection for Graffiti

We have all encountered graffiti—pictures and writings spray painted across walls, buildings, highway overpasses, subway cars, and just about any other public place that can act as a blank canvas. To some it is art, but traditionally it has been seen as vandalism. However, the rise of influential and famous graffiti artists such as Banksy, David Anasagasti, and Shepard Fairey, who use their art as a medium for political and social activism, has transformed many people's perspective of graffiti and it is increasingly becoming a well-respected art form. With this rise in popularity, graffiti artists are now seeking copyright protection for some of the most public artwork in the world. The Copyright Office is granting copyright registrations to these artists, but will the artists be able to enforce their rights?

For instance, David Anasagasti (known as Ahol Sniffs Glue), renowned for his counter-culture criticism of American commercialism and in particular his "Ocean Grown" mural on the façade of a building in Miami, is fighting to protect this very public piece of art in a copyright infringement suit he filed against American Eagle in New York. American Eagle is using "Ocean Grown" in a widespread media and advertising campaign without Anasagasti's approval.

Anasagasti's artwork may be located in some of the most public places and there is a reasonable expectation that his works could be videoed or photographed, but copyright law still applies. In the United States, if a work is original and fixed in a tangible medium, it is afforded copyright protection.

The medium for graffiti (e.g. building facades) certainly leaves graffiti artists with new and unusual copyright enforcement challenges. For example, not owning the structure on which the artwork is painted means the property owner could sell the artwork as part of the structure or destroy the artwork by painting over it.

While it seems reasonable that graffiti artists should be able to protect their work from being copied, it is a different matter to try to prevent the owner of a building from selling, repurposing, or refurbishing their property. Recently, a federal judge declined to issue a permanent injunction that would have stopped the demolition and redevelopment of the 5Pointz "graffiti mecca" of Long Island City, New York by the property owners. The judge was sympathetic to the artists' plight, but found he could not stop the building owners from exercising their right to redevelop the property into residential towers already approved by the city. The artists claimed protection under the Visual Artists Rights Act (VARA), which allows artists to prevent the distortion, mutilation, or other modification of artwork that is "of recognized stature" if the artist's reputation would be prejudiced as a result. 17 U.S.C. §§ 106A(a)(3)(A)-(B). Unfortunately, the ephemeral nature of graffiti makes it difficult for artists to prove that their artwork is they type protected by VARA.

With Anasagasti and other artists’ copyright infringement cases proceeding and the 5Pointz case up on appeal, it will be interesting to see how these issues play out in the courts.

Image source: Anasagasti v. American Eagle Outfitters complaint