Copyright Protection for Illegal Graffiti?

Graffiti is normally considered illegal.  To some it is art, but traditionally it has been seen as vandalism. However, the rise of influential and famous graffiti artists such as Banksy, David Anasagasti, and Shepard Fairey, who use their art as a medium for political and social activism, has transformed many people’s perspective of graffiti and it is increasingly becoming a well-respected art form. The Copyright Office is granting copyright registrations to these artists.  However, the artists may have a hard time enforcing these rights.

The medium for graffiti (buildings and structures) certainly leaves graffiti artists with unusual copyright enforcement challenges. For example, not owning the structure on which the artwork is painted means the property owner could sell the artwork as part of the structure or destroy the artwork by painting over it.

While it seems reasonable that graffiti artists should be able to protect their work from being copied, it is a different matter to try to prevent the owner of a building from selling, repurposing, or refurbishing their property. Recently, a federal judge declined to issue a permanent injunction that would have stopped the demolition and redevelopment of the 5Pointz “graffiti mecca” of Long Island City, New York by the property owners. The judge was sympathetic to the artists’ viewpoint, but found he could not stop the building owners from exercising their right to redevelop the property into residential towers already approved by the city.  The artists claimed protection under the Visual Artists Rights Act (VARA), which allows artists to prevent the distortion, mutilation, or other modification of artwork that is “of recognized stature” if the artist’s reputation would be prejudiced as a result. See 17 U.S.C. §§ 106A(a)(3).  The nature of graffiti makes it almost impossible for artists to prove that their artwork is they type protected by VARA.

We will keep an eye on this issue and report in this blog if there are any decisions in this area of law.

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