With Banksy’s recent residence, New York City enjoyed daily installations of his work – many of which were almost immediately destroyed or defaced, and the last being confiscated by the police. But Banksy is not the only graffiti artist to see their work destroyed or tampered with; in fact, in October, graffiti artists who have contributed to work on a building complex in Long Island City (what has been dubbed “5Pointz”) filed a lawsuit to halt destruction of the buildings to make way for apartments (the judge just denied a permanent injunction preventing destruction of the buildings). And a few years ago, artists sued to enjoin publication of a book featuring unauthorized photographs of their artwork. Their claims? That the works of art at issue are protected under copyright law.
This raises the question, then: is graffiti art subject to copyright protection?
Property law would actually seem to shed more light than intellectual property to help provide an answer, and it appears that the result turns on the issue of the property owner’s permission. Indeed, copyright law does not provide a clear answer, nor is there much case law out there to help give some guidance.
The Copyright Act provides protection for “original works of authorship fixed in any tangible medium of expression…from which they can be… communicated, either directly or with the aid of a machine or device”. As such, it would seem that graffiti art, illegal or commissioned, would be provided with copyright protection.
The issue that arises, however, is that while the underlying work itself may be protected by copyright, the medium upon which it sits (i.e. a building wall, a sidewalk, a highway traffic noise barrier) is separate. According to the Copyright Act, “[o]wnership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.” As such, the graffiti artist would obtain a copyright in their work upon placing it on a substantially fixed object (thus granting them all the exclusive rights of a copyright owner), but they would not receive copyright protection in the underlying medium. The awkward result allows the property owner to keep or destroy the work as they see fit (but it would not allow them to reproduce, create derivative works from the original work, or distribute the work without permission, as these rights are exclusive to the copyright owner) while the graffiti artist retains the copyright in the work.
Some graffiti artists, including the 5Pointz artists discussed above, have tried to rely on another form of protection provided by copyright law: the Visual Artists Rights Act (VARA). VARA provides “the producers of ‘works of visual art’ the right to: claim authorship of the work; ‘prevent the use of his or her name as the author of any work of visual art which he or she did not create;’ and ‘prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.’” But, VARA protection from destruction only applies to works of “recognized stature”, which would present a hurdle to most graffiti artists. (And the judge in the 5Pointz case, Judge Frederic Block, determined that the graffiti works were not of “recognized stature”, while also indicating that only priceless works of art would qualify as such.)
Moreover, in English v. BFC & R. East 11th Street LLC – one of the only reported cases discussing graffiti protection and the VARA – the court found that “illegal murals could not be protected” under the Act. This ruling would seem to negate any claim by the average graffiti artist who is engaging an in illegal activity. So, while an illegal graffiti work may result in a copyright, the small amount of case law on the subject denies protection against destruction of said illegal work.
The group of artists at 5Pointz asserted they were different, however, because the building owner himself supposedly endorsed the works. In fact, one of the plaintiffs in the lawsuit claimed that “the buildings’ owner, Gerald Wolkoff, allowed ‘aerosol artists’ to use the interior and exterior walls of the property since 1993 to create works of art.” If that was the case, the artists seemed to have much stronger standing for preventing the destruction of their work. However, Judge Block, determined that the property owners have the right to develop the property as they see fit – in this case, they seek demolition of the buildings by the end of the year.
So, while copyright may exist in graffiti art, in many instances the benefits of actual protection are not realized. Ironically, this is due mainly to the fact that graffiti artists are not willing to come forward and claim their works in order to reap the benefits of copyright protection (and understandably so, given that doing so may subject them to criminal sanctions). And even for those who do come forward, usually the work was not authorized or commissioned by the structure owner, such that the artist would lack recourse against having their work removed or destroyed. We may see more case law or statutes on the topic in the coming years, but for now it seems graffiti art and copyright law will remain relatively estranged.
Truly Design Visual Communication Studio was born in 2003 as a graffiti crew formed by four friends who have been sharing a passion for street art since their teenage years. They specialize in urban art, illustration and graphic design for commercial and artistic projects. Our work has been published in numerous editions and has been showcased in various collective and solo exhibitions. Find out more about Truly Design at http://www.truly-design.com/.