{"id":3458,"date":"2021-02-01T16:27:43","date_gmt":"2021-02-01T16:27:43","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3458"},"modified":"2021-02-01T16:27:43","modified_gmt":"2021-02-01T16:27:43","slug":"whose-right-is-it-anyway-the-messy-intersection-of-graffiti-street-art-and-copyright-law","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2021\/02\/01\/whose-right-is-it-anyway-the-messy-intersection-of-graffiti-street-art-and-copyright-law\/","title":{"rendered":"Whose Right Is It Anyway?: The Messy Intersection of Graffiti, Street Art, and Copyright Law"},"content":{"rendered":"\n

(Source<\/em><\/a>)<\/p>\n\n\n\n

Unlike the drab\nbillboards and miles of gray concrete known to punctuate urban landscapes, the\nsplashes of color typical of murals and street art demand<\/em><\/a>\nto be seen. Street art\u2019s roots, however, are found in graffiti, a phenomenon\nwhere various structures are \u201ctagged\u201d with words, which has been viewed as a public\nnuisance<\/em><\/a> and plays a symbolic role in the controversial broken\nwindows theory<\/em><\/a> of policing neighborhood blight and crime. Graffiti\nartists have gradually garnered a countercultural reputation for disrespecting<\/em><\/a>\nprivate property rights since they see city structures as blank canvases. Los\nAngeles, for example, spends $7.5\nmillion<\/em><\/a> a year to eliminate graffiti, removing over thirty million\nsquare feet of it from over 600,000 spots in 2015. Authorship is typically\naccompanied by legal\nrights<\/em><\/a>, but do ownership interests even\nexist<\/em><\/a> for graffiti artists and can they enforce them?  Do they even want to?<\/p>\n\n\n\n

Cities generally criminalize<\/em><\/a> graffiti as a form of vandalism, but whether an artist\u2019s right to free expression can overcome this is less clear<\/em><\/a>. Cities generally criminalize<\/em><\/a> graffiti with various approaches: Los Angeles considers<\/em><\/a> graffiti to be a nuisance, requiring<\/em><\/a> owners to keep buildings free of graffiti while artists may face fines and imprisonment under the California Penal Code<\/em><\/a>. New York treats graffiti similarly,<\/em> though both the state<\/em><\/a> as well as New York City<\/em><\/a> permit graffiti if made with the permission of the property owner. Under the Copyright Act of 1976<\/em><\/a>, copyright protection<\/em><\/a> begins upon creation of an original, minimally creative<\/em><\/a> work fixed in some tangible object, such as a wall. This means that graffiti artists may have claims of varying merit of copyright infringement<\/em><\/a> against their work if appropriated or copied without their permission, though these cases incentivize settlements<\/em><\/a> 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<\/em><\/a> against such actions. The doctrine of unclean hands<\/a> <\/em>is another affirmative defense, in which the illegality of the underlying work leads courts to refuse<\/em><\/a> extending copyright protections to it in common law countries. A notable judicial trend<\/em><\/a>, though, is that even American courts have treated graffiti as potentially copyrightable based on case-specific facts without reaching the questions of the work\u2019s 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<\/em><\/a>. As a result, few have made such claims<\/em><\/a>, reflecting that it may not always be in the best interest of an artist to try to enforce an ownership interest in graffiti.<\/p>\n\n\n\n

In some circumstances, however, there may be a payoff to pursuing litigation. Interesting legal developments<\/em><\/a> regarding graffiti arose in the Cohen v. G&M Realty<\/em><\/a> case, also known as the 5Pointz case, in which twenty-one \u201caerosol artists\u201d were granted statutory damages of $6.75 million after a developer\u2019s \u201cwillful\u201d destruction of their art without notice on his warehouse buildings. The Visual Artists Rights Act<\/em><\/a> (\u201cVARA\u201d) applied here<\/em><\/a> to protect the moral rights of artists against the \u201cdestruction, mutilation, or other modification\u201d of their work that would be \u201cprejudicial to [their] honor or reputation,\u201d including work that is \u201cof recognized stature,\u201d so long as that work was \u201ca work of visual art.\u201d A work of visual art<\/em><\/a> is a \u201cpainting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer.\u201d The court found<\/em><\/a> that the visual works that Jonathan Cohen curated were of \u201crecognized stature,\u201d in that they were \u201cmeritorious\u201d in nature and \u201crecognized\u201d by \u201cart experts, other members of the artistic community, or by some cross-section of society.\u201d This case held up to scrutiny on appeal to the United States Court of Appeals, Second Circuit, which recently affirmed<\/em><\/a> 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<\/em><\/a> of this ruling for future cases, particularly those involving disputes over unwanted graffiti, which is a question the court left unanswered. <\/p>\n\n\n\n

Street art is\ngraffiti\u2019s socially-acceptable<\/em><\/a>\nand frequently-conflated counterpart which has consequently seen a global rise\nin popularity<\/em><\/a>. Indeed, certain types of street art are even called \u201cpost-graffiti<\/em><\/a>,\u201d\ndescribing a movement of transition<\/em><\/a>\nfrom past and often illegal works in graffiti to legal works of art which has arguably\nincluded popular street artists such as Keith\nHaring<\/em><\/a>, Jean-Michel\nBasquiat<\/em><\/a>, and Banksy<\/em><\/a>.\nStreet art is characterized<\/em><\/a>\nby its imagery rather than the words typical of graffiti, but not all street\nart is authorized. Ironically, a\nman even faced vandalism\ncharges<\/em><\/a> in Los Angeles\nfor unauthorized vandalism against Banksy\u2019s unauthorized street art. As with\nthe 5Pointz\ncase<\/em><\/a>, courts still grant\ngreater\nprotections<\/em><\/a> to graffiti\nand street artworks works made with a property owner\u2019s consent. Murals, on the\nother hand, are another subset of street art specifically characterized<\/em><\/a> by the fact that they are works that\nare either commissioned or done with permission of the property owner. <\/p>\n\n\n\n

Murals have been\nembraced by various\ncommunities<\/em><\/a> throughout the United States as a creative solution to halt\nthe recurrence<\/em><\/a> of graffiti in certain areas. In fact, murals tend not\nto be tagged or sprayed over by graffiti and street artists due to community\nrespect for the mural artists\u2019 work. For example, in San\nFrancisco<\/em><\/a>, murals rarely get covered in graffiti, with the exception of\ncorporate murals. Some murals are designed to shine a spotlight on issues like mental health<\/em><\/a>.\nStill others are simply being made for art\u2019s sake, and are sponsored by museums<\/em><\/a>.\nYet, the distinctive difference between street art and graffiti is that street\nart is an art form more frequently expressed with authorization than graffiti,\nwhich makes all the difference\nlegally, and this authorization raises its own set of intellectual property\nquestions regarding ownership. Is the artist or the person who commissioned the\nwork the copyright holder? It depends. If the work is commissioned, it\nmay be considered a work\nmade for hire<\/em><\/a> as might a work prepared by an employee operating within\nthe scope of their employment. This is an exception under the Copyright Act<\/em><\/a>\nwhich would grant the copyright in the new work to the person who commissioned\nit and legally treats\nthem<\/em><\/a> as though they created it. If the work falls outside of these\ndefinitions, such as if the work was made with permission rather than being\ncontracted for, the artist generally\nretains rights<\/em><\/a> in the work, including the right of\nreproduction<\/em><\/a>. However, the general public may have a different\nview<\/em><\/a> on who has the right to reproduce and monetize such works,\nespecially as influencers and corporations have taken an interest in the\nappreciable aesthetic value of street art. <\/p>\n\n\n\n

Folks who take and\npost photos of street art for personal use are likely\nin the clear<\/em><\/a>, but influencers who post for an \u201cindirect\nor direct commercial purpose\u201d<\/em><\/a> can open themselves up to liability.\nSince influencers on social media can\nbe paid<\/em><\/a> upwards of $100,000 for posting advertisements, an argument can\nbe made that they indirectly profit off of another\u2019s creative work if they haven\u2019t\nsought prior permission for reproducing it.<\/p>\n\n\n\n

In 2018,\nMercedes-Benz tested the limits of copyright protections afforded to street\nartists after it had posted\nan advertisement<\/em><\/a> for a vehicle on Instagram while using street art as a\nbackdrop without seeking permission from or granting attribution to its\nauthors. Mercedes-Benz sued these street artists under five\ncauses of action<\/em><\/a> seeking a declaratory judgment that it had not\ninfringed upon their rights, advancing a relatively novel argument in its\ncomplaint that the mural was a part of the building it was painted on and thus\nconstituted an architectural work; the suit survived a motion to\ndismiss<\/em><\/a> by the artists. Under the Architectural\nWorks Copyright Protection Act<\/em><\/a> (\u201cAWCPA\u201d), photography of architectural\nworks that are \u201cordinarily visible from a public place\u201d do\nnot constitute<\/em><\/a> copyright infringement. As the case continues to move<\/em><\/a>\nthrough the courts after consolidation, its implications are significant. An\noutcome that upholds the street artists\u2019 rights would provide them a higher\nlevel of control over how the public is permitted to use their artwork, while a\nholding favoring Mercedes-Benz would constitute a stripping away of an artist\u2019s\nownership rights in restricting commercial abuses of their work.<\/p>\n\n\n\n

Seeking permission\nseems to make the difference when it comes to creating protectable art and\nusing another\u2019s art without having to end up in costly litigation. The threat\nof litigation to protect interests in unauthorized graffiti can push companies\ntowards settling cases, just as bad faith removal of authorized graffiti can\nlead to massive\ndamages<\/em><\/a>. Murals and street art are afforded robust protections under\ncopyright law as well, though\nthis may soon change<\/em><\/a>. Until legislatures propose new rules for art\nremoval by property owners and limits to individual and corporate abilities to\nprofit off of art found in public places, just ask for permission first. <\/p>\n\n\n\n

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\n

About the Author: Jonathan Gonzalez\nis a 2L at Cornell Law School. He obtained a Bachelor’s degree from the\nUniversity of California, Davis in French and Political Science \u2013 Public\nService and worked previously at Cornell’s Legal Information Institute.  <\/p>\n<\/div><\/div>\n\n\n\n

Suggested Citation: Jonathan Gonzalez, Whose Right Is It Anyway?: The Messy Intersection of Graffiti, Street Art and Copyright Law<\/em>, Cornell J.L. & Pub. Pol\u2019y: 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\/<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

(Source) 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\u2019s roots, however, are found in graffiti, a phenomenon where various structures are \u201ctagged\u201d with words, which has been viewed as a public nuisance and…<\/p>\n","protected":false},"author":1,"featured_media":3459,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,21,25,27,28],"tags":[388,741,864,879,1609],"class_list":["post-3458","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-spotters","category-policycontributor-blogs","category-recent-stories","category-student-blogs","tag-copyright","tag-graffiti","tag-ip","tag-jlpp","tag-urban-art"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3458","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3458"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3458\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/3459"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3458"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3458"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3458"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}