Copyright Law and Graffiti [explained by a street artist and lawyer]

Hey hey! So I had a subscriber ask about graffiti and whether it was protected by copyright. To which I responded, it depends. As most lawyers do right? But in actuality, it does depend. It depends on the parties involved, the medium by which it is shared, and even what country the graffiti is in.

U.S: sees copyright as a way to incentivize artists to get out there and create. It also promotes the sciences so inventors will create and explore new ways of doing things. Because of course, who wouldn’t want to share what they’ve created AND get paid for it??

But then we run into the issue of, if you are creating something that infringes on the rights of others, would you still expect to get a profit off of that? It seems counter to our American dream which holds property rights in high esteem.

Street art is an art form that has This collision of rights comes to a head when we think of graffiti or street art. By definition, street art seems to preclude any sort of copyright protection. It’s free, public, and probably going to get destroyed.

So if it’s free, do you expect copyright protection to protect your profits? If it’s public, it tends to be sort of a strange gift given to the public. Also, if its on someone else’s property, another property term that comes into play is the idea of fixtures. If something is so affixed to another person’s property, it is deemed part of the real estate and part of the real property owner’s estate.

This blog post may not be a leisurely read. I’m realizing this as I’m writing it.

So, here’s the thing. In order to get copyright protection for your graffiti, you actually have to submit a form to the Copyright office that says it is your work.

Sounds pretty reasonable.

Unless of course you were doing something, I don’t know, illegal.

And that’s where the rubber meets the road. What graffiti artist is going to submit a form saying they illegally painted on a wall? I mean here, take all the evidence against me you can get state.

I mean, in actuality, I doubt that the authorities are going to speak to the copyright office, but still. So you either call the copyright office and tell on yourself to protect your profits while you sit in jail. Or you could let someone have your profits because of your artwork.

Sort of a no win situation here. But again this would reinforce a policy of discouraging illegal activity. So I get it. Even as a defense attorney.

Of course, I gotta bring up arguments for copyright protection. It’s an act of creation. It’s beautiful. The artist is risking alot just to create it. It has changed society. It’s a part of a worldwide phenomenon.

But has the court said anything important on this matter? Not so much.

So the biggest case that sort of addresses this question, but in a round about way that doesn’t say much at all is Villa v. Pearson Education.

So, Villa sued because Pearson Education used a mural that he painted in a skateboarding video game. Pearson said that it wasn’t protected under the Copyright act because it was done illegally. The court didn’t give us graffiti artists much to go on because they decided it on narrow grounds holding that the claim that the work is not copyrightable due to its illicit origin would require a determination of the circumstances under which the mural was created. 

In other words, they didn’t answer the question of whether illegal graffiti is copyrightable. 

It may be assumed that you wouldn’t be able to profit from illegal activity, but the court didn’t say that, so we can’t assume something that the court didn’t say. 

I feel like there may be a better way of negotiating this outside of court. Alternative dispute resolution if you will. If someone used my art, I’d probably call them up and be like hey man, how’s your family? Oh by the way, could you write my name on that thing? Or just give me a piece of the profits pie? Now maybe in these court cases both parties were unwilling to work together and stubborn. But generally a threat of a copyright violation makes the violator recant, so it doesn’t seem like it would be too much of an issue to negotiate a reasonable outcome where both parties are satisfied. 

I don’t know, what are your thoughts?