Copyright is for Losers: The Uncertain State of Legal Protection for Street Art & Graffiti
The infamous graffiti artist Banksy is known for his public proclamation that “copyright is for losers©™”.[1] However, fellow artists may beg to differ. The advent of high-profile litigation involving graffiti artists signals a shift in attitudes towards the artistic merit and legal significance of such works.
At present, it is unclear whether street art and graffiti are eligible for copyright protection in the United States. While art depicted on public walls is likely to fall within the types of works protected by copyright law,[2] unauthorized placement of such works raises the question of whether copyright protection can attach to art resulting from criminal conduct.
This dilemma is exemplified by a case that H&M brought against artist Jason “Revok” Williams in March of 2018.[3] After noticing his graffiti work in the background of an H&M ad campaign, Mr. Williams sent a cease and desist letter asserting copyright infringement.[4] In response, H&M filed a complaint seeking a judicial declaration that Mr. Williams did not have copyright in graffiti created through illegal acts.[5] Ultimately, the legal question was not resolved because severe public backlash caused H&M to withdraw its complaint just one week after it was filed.[6]
The early conclusion of the H&M case means that creators of illegally placed street art and graffiti may not enjoy exclusive rights to the reproduction, sale, and display of their works.[7] However, litigation in another case has cautiously determined that graffiti artists enjoy moral rights to their works under the Visual Artists Rights Act of 1990 (“VARA”).[8] This amendment to U.S. copyright law stipulates that a work of visual art is eligible for the independent right of attribution and integrity, including the right to prevent the intentional or grossly negligent destruction of a work of recognized stature.[9]
In Cohen v. G&M Realty L.P.,[10] twenty-one plaintiff graffiti artists attempted to save their works from redevelopment of the 5Pointz property in Queens, New York. As the defendant property owner whitewashed the plaintiff’s works before trial, the plaintiffs’ sole recourse was to seek monetary damages. The Eastern District of New York held that “a plethora of exhibits and credible testimony” resulted in a finding that almost all of the plaintiffs’ works easily achieved “recognized stature.”[11] Not only did the plaintiffs demonstrate that the 5Pointz works appeared in multiple media and news outlets, but the plaintiffs’ expert detailed the craftsmanship and importance of the works to the wider art world.[12] As a result, the Court awarded the plaintiffs total damages of $6,750,000.[13]
The outcomes in H&M and Cohen uniformly signal a strong social recognition of graffiti as valuable public art. However, the legal ramifications of illegally placed street art and graffiti remain unclear. Because the property owner in Cohen provided permission for artists to display their work,[14] the Court was not required to consider the effects of criminal conduct upon the creation of visual art. Therefore, the unauthorized placement of graffiti remains subject to legal challenge. Furthermore, the defendants in Cohen filed a Notice of Civil Appeal on February 23, 2018.[15]
For the time being, one could say that copyright is indeed for losers. However, the identity of the losers has yet to be determined.
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