Selling the Writing on the Wall: Does Copyright Protect the Work of Graffiti Artists?
Editor in Chief
Is it possible to “steal” a piece of graffiti art? The Wall Street Journal recently posed this question in reporting about a Michigan lawsuit stemming from the removal of a mural attributed to the famous British street artist Banksy. A nonprofit art gallery allegedly removed the unsolicited work – which depicts a child holding a paint bucket next to the phrase, “I remember when all this was trees” – from a defunct Detroit factory in order to save it from destruction; the building owners argued that the piece could be worth $100,000, according to the Journal. But the apparent owners of the building demanded return of the work and monetary damages.
This scenario is reminiscent of one that played out recently in Seattle: Amazon.com, Inc. reportedly removed and installed in its new headquarters complex street art created on the walls of a former building on the site. The artists cried foul, asking for recognition for their work.
As graffiti by the likes of Banksy, director of the Academy Award-nominated documentary “Exit Through the Gift Shop,” gains international popularity, economic forces may cause more of this traditionally taboo artwork to be removed from private and public streetscapes and transported to galleries or private collections (read more about blossoming graffiti in Detroit here). As a result, we may see further lawsuits like the one involving the Banksy piece. While it may appear unfair to street artists that their work is removed and displayed or sold for profit by third parties, property law doctrines suggest that artists probably have few property rights to their unauthorized works that would allow them to control disposition of the pieces or to profit from their display or sale. However, federal copyright law might provide some graffiti artists with a degree of protection against unauthorized removal, display, and reproduction of their creations – depending on how one interprets the scant federal case law on the subject.
What rights, if any, an artist has to a particular graffiti mural hinges on whether it was authorized by a property owner. Unsolicited street art may qualify as criminal vandalism under state or local laws. Moreover, under traditional property law principles, the owner of property where graffiti is made typically should own the physical work (i.e. the wall containing the painting). (An interesting case might arise if a graffiti artist claimed to have “mistakenly improved” property with valuable graffiti.)
Street artists might try to claim the protections of the Copyright Act, 17 U.S.C. § 101, et. seq., although it is unclear whether this doctrine would provide recourse. Under copyright law, an artist receives certain exclusive rights in her creative work, such as to control display and distribution of copies. If a copyright violation is found, the owner of the copyright may receive actual damages plus the infringer’s profits, or statutory damages.
But does the underlying illegality of graffiti prevent federal copyright protection? Two student commentators take different views. Under the statute, “ownership of a copyright is distinct from ownership of a physical object in which the copywritten work is embodied, so that ownership of one can be transferred without transferring ownership of the other.” 77 Am. Jur. Trials 449 (2000). This suggests that a painting on the side of a building could qualify for protection separate from the circumstances of its creation. In a memorandum opinion in Villa v. Brady Publishing, 2002 U.S. Dist. LEXIS 11753, *7 (N.D. Ill. 2002), a federal district court “assume[d] without deciding, that the [graffiti depicted in a video game manual] is copyrightable and was … fixed in a tangible form.” In a 2009 law review comment, Stacie Sandifer concludes that “the visual art form of graffiti does appear to confer fundamental rights of ownership that the artist can claim,” but suggests that deference “will likely be given to the building owner’s property rights” when copyright and property law clash. Stacie Sandifer, Unauthorized and Unsolicited; Is Graffiti Copyrightable Visual Communication?, 12 J.F.K. U. L. Rev. 141, 149 (2009). This view contrasts with the Villa court’s later statement, also in a memorandum opinion, that a copyright claim “would require a determination of the legality of the circumstances under which the mural was created.” Villa v. Pearson Educ., Inc., 2003 U.S. Dist. LEXIS 24686, *7 (N.D. Ill. 2003). In a journal comment, Danwill Schwender relies on this language to contend that the defense of illegality prevents copyright claims for graffiti. Danwill Schwender, Promotion of the Arts: An Argument for Limited Copyright Protection of Illegal Graffiti, 55 J. Copyright Soc’y U.S.A. 257 (2008). Schwender proposes an amendment to the Copyright Act to protect unauthorized graffiti.
As a practical matter, a graffiti artist would need to claim ownership of the copyright in the work, possibly exposing herself to criminal prosecution under state or local vandalism laws or to a tort lawsuit for trespass to land. See Sandifer, supra. For graffiti artists who cultivate an aura of secrecy around their work, like Banksy, bringing a legal claim could result in an undesirable public unmasking.
Graffiti artists also might attempt to claim “moral rights” to their work established by the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106(a), in order to receive attribution for or prevent damage to their work. The VARA gives 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.” Yet unsolicited street art may not qualify for VARA protection. Although no cases appear to squarely address the issue, a federal district court in an unpublished opinion stated that VARA “does not apply to artwork that is illegally placed on the property of others, without their consent, when such artwork cannot be removed from the site in question.” English v. BFC&R E. 11th St. LLC, 1997 U.S. Dist. LEXIS 19137, *14 (S.D.N.Y. 1997). Furthermore, it is unclear when graffiti would meet the threshold question under VARA as being “works of recognized stature.” See John Nivala, Droit Patrimoine: The Barnes Collection, the Public Interest, and Protecting Our Cultural Inheritance, 55 Rutgers L. Rev. 477, 524 (2003).
When a property owner authorizes graffiti art, such as for creation of a community mural, the artist probably has more rights to control what happens to that artwork. See generally Michelle Bougdanos, Comment, The Visual Artists Rights Act and Its Application to Graffiti Murals: Whose Wall Is It Anyway?, 18 N.Y.L. Sch .J. Hum. Rts. 549 (2002).
In broad strokes, graffiti artists likely face a challenge if they decide to pursue legal remedies for removal and display of their unsolicited creations. As for the resolution of the Banksy lawsuit, read more here.