Graffiti in the United States – American University Intellectual Property Brief

Photo by Murphy Yanbing Chen: Parade in the street of New Orleans, Saint-Claude, 2019

As an explosive cultural phenomenon that actively shapes the urban environment, graffiti maintains an adversarial relationship with the law. This blog explores the relationship between the illegal nature of graffiti and the intellectual property laws that attempt to protect it.

GRAFFITI IN THE UNITED STATES, A BRIEF INTRODUCTION

Graffiti is a unique contemporary cultural phenomenon of contradiction. Its contradictory character makes it accessible to the public but inaccessible to its interpretation. It includes folk influences but seems to be shunned by the mainstream art world. Most graffiti artists and some street artists are also creatures of contradiction. For example, Banksy is a street artist known to the public, but he works in secrecy, anonymity and sometimes in total alienation – a working method he shares with many graffiti artists. Budget, commission and legal permission from owners are the prerequisites that many street artists must obtain before working on their murals. But there are no such rules in the world of graffiti. No fame equivalent to Banksy exists to keep the qualifications of a graffiti artist. Anyone can write graffiti.

Graffiti symbolizes defiance and defiance of authority, unlike commissioned public art and street art. According to an interview with tagger Devon Brewer, who testified as an expert witness in the National Paint & Coating Ass’n v. the city of chicago, the oldest and most “traditional” graffiti functioned primarily as a gang message. For example, Brewer noted that New York gangs, like the “Black Spades” and “Tomahawks,” Philadelphia gangs, like the “Dogtown” and “Moons,” and most Hispanic Chicago gangs often used graffiti to mark their territories and eulogize their dead.

In the 1970s in New York, the number of participants in graffiti increased and began to spray various forms – tags, vomits, etc. – mainly in New York subways. Many of the trains were painted by the city’s youth, who, like the color and energy amplified by their graffiti designs, sought to make vibrant, dynamic statements about their existence. They covered T-to-B (top-to-bottom) or E-to-E (end-to-end) trains, with bold and exciting tags influenced by popular culture and advertisements. The scale of graffiti and the level of anti-graffiti policing exploded as graffiti found its way from subway trains to the walls of public buildings, private properties, silver wastelands and various other cityscapes.

Unsurprisingly, the rapid increase in graffiti left the legal system struggling to regulate the different forms of graffiti along with unanswered questions about who, what, and where graffiti belonged.

VISUAL ARTISTS (VARA) AND GRAFFITI RIGHTS ACT

VARA exempts protections for any form of image representation other than “original painting” and “limited edition supervised copies”. But the production, environments and culture/essence of graffiti as a whole do not fit neatly into the traditional concept of “paintings”. 17 U.S. Code 106 A states: “Alteration of a work of visual art that results from the passage of time or the inherent nature of the materials is not a deformation, mutilation, or other alteration described in subsection (a)(30(A).” This provision makes it difficult for graffiti artists to assert moral rights in their works, as the transitory nature of graffiti, external conditions, and the qualities of spray paints can all affect “modification.” works over time.

Additionally, while it may extend to removable artwork, VARA’s protection has left immobile artwork in obscurity. For example, if unauthorized artwork, such as graffiti, is glued/attached to a building, thereby becoming immovable, the creator loses VARA’s moral rights protection. This exemption was explicitly addressed in the Ron English case (English vs BFC Partners). In this case, street artist Ron English sued the owners for destroying their works in a community garden under VARA. The court dismissed his claim due to VARA’s limitations in protecting real estate artwork affixed to the property of others without the owner’s consent.

Moreover, the illegality of the graffiti makes it even more difficult for VARA to grant them protection. Without a legitimate cause of creation, a morality argument supporting graffiti art under VARA is often misunderstood by the jury. Despite graffiti’s rare victory in the 5Pointz case (Cohen vs. G&M Realty LP), where the Supreme Court awarded artists whose works were destroyed a total of $6.75 million, this is not the norm. Additionally, this case was unique because 5Pointz artists, unlike most anonymous graffiti artists, were established in the art world. Moreover, the artists of 5Pointz did not paint illicitly. Instead, they got the owner’s permission and support to paint. Therefore, symbolically, the Supreme Court’s decision to dismiss the defendant owner’s appeal is a victory for the arts. But from a doctrinal point of view, the limits of the extent to which VARA protects unknown graffiti artists and unauthorized graffiti are still largely undetermined.

COPYRIGHTABILITY AND GRAFFITI

Some graffiti artists choose to register their graffiti with the US Copyright Office. Yet many graffiti artists prefer to stay underground to avoid possible arrest. Thus, it is possible to legitimize the design of the graffiti (combination of words, fonts, ornamentations, colors, shapes, etc.) by registering the copyright for the entire work. However, once the graffiti is registered and formalized, it is no longer “underground” and illegitimate. Instead, as an act of betrayal to the true spirit of graffiti, once it is in the ‘system’, graffiti loses its original intent to bend, encroach and break the boundary of social norms.

Also, even if graffiti artists want to document their work, getting certifications from the copyright office may not be their first choice. In most graffiti communities, taggers typically use a “black book,” such as a tattoo design collection book or printer collection book, to document their tag and vomit collection with markers and markers. markers. The “black book” could be any notepad or sketchbook. It is loosely organized, much like the social organization of graffiti artists. Referring to the factual context of
National Paint & Coating Ass’n v. the city of chicago, graffiti confederations include “classes” (individual writers), “teams” (writers of friends), and “networks” (mentor-protege writers).

Graffiti artists pass around the “black book” and share design ideas like friends sharing a photo album. However, it is unclear who “owns” or “holds” the “black book”, and there may be more than one black book. This secretive nature of shared documentation of graffiti design along with the community spirit of being “outlaws” embodied by graffiti artists has further distanced graffiti communities from legal protections, achieving a record of the law copyright and seeking VARA protection. Nevertheless, as part of the visual landscape that actively shapes and forms our common urban environment, graffiti, both design and its community as a whole, deserves more recognition and protection from both the art world and of the law.

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