Protecting the Creative Outlaws: Graffiti in the United States
As an explosive cultural phenomenon that actively shapes the urban environment, graffiti has a conflicting relationship with the law. This blog explores the relationship between the outlaw nature of graffiti and the intellectual property laws that attempt to provide protection thereof.
Attribution
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GRAFFITI IN THE UNITED STATES: A BRIEF INTRODUCTION
Graffiti is a unique contemporary cultural phenomenon of contradiction. Its contradictory nature renders it accessible to public viewing yet inaccessible to its interpretation. It is inclusive of popular influences yet seemingly shunned by the mainstream art world. Most graffiti writers and some street artists, too, are creatures of contradiction. For example, Banksy is a publicly known street artist, yet he works in secrecy, anonymity, and sometimes, utter alienation—a working method he shares with many graffiti writers. The budget, commission, and legal permission from property owners are the common prerequisites for many street artists to obtain before working on their murals. But there are no such rules in the world of graffiti. No Banksy-equivalent fame exists to gatekeep the qualification of a graffiti writer. Anyone can write graffiti.
Graffiti symbolizes defiance and challenge to 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 earliest and most “traditional” graffiti primarily functioned as gang message. For example, Brewer noted that New York gangs, like the “Black Spades” and the “Tomahawks,” the Philadelphia gangs, like the “Dogtown” and the “Moons,” as well as most of Chicago’s Hispanic gangs often used graffiti to mark their territories and eulogize their dead.
In 1970s NYC, the number of graffiti participants increased and began spraying various forms— tags, throw-ups, etc.—mainly on the New York subways. Many of the trains were painted by the city’s youth, who were, like the color and energy amplified by their graffiti lettering designs, seeking to make vibrant and dynamic statements to their existence. They covered trains T-to-B (top to bottom) or E-to-E (end-to-end), with bold, exciting tags influenced by popular culture and advertisements. The scale of graffiti and level of anti-graffiti police forces blew up when graffiti found its way from subway trains to the walls of public buildings, private properties, abandoned silver lots, and various other urban cityscapes. Unsurprisingly, the rapid increase of graffiti left the legal system struggling to regulate the various forms of graffiti, along with unanswered questions of who, what, and where graffiti belonged.
VARA (VISUAL ARTISTS RIGHTS ACT) AND GRAFFITI
VARA exempts protections for any form of representation of imagery other than “original painting” and “limited edition supervised copies.” But, graffiti’s production, environments, and culture/essence at large do not neatly fit into the traditional concept of “paintings.” 17 U.S. Code 106 A states: “the modification of a work of visual art which is a result of the passage of time, or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(30(A).” This provision makes it hard for graffiti writers to claim moral rights for their works because graffiti’s transient nature, outdoor conditions, and qualities of aerosol paints can all affect the “modification” of the works as time passes.
Additionally, while it may extend to removable artworks, VARA’s protection left unmovable works in the dark. For example, if works of unauthorized art, like graffiti, are adhered/affixed to a building, therefore becoming unmovable, the creator loses VARA’s moral rights protection. This exemption was explicitly addressed in the Ron English case (English v. BFC Partners). In that case, street artist Ron English sued property owners for destroying their works in a community garden under VARA. The court rejected his claim due to VARA’s limits in protecting immovable works of art affixed on the property of others without the owner’s consent.
Further, the illegality of graffiti makes it even harder for VARA to grant it protection. Without a legitimate cause of creation, a morality argument supporting graffiti art under VARA is often viewed unfavorably by the jury. Despite graffiti’s rare victory in the 5Pointz Case (Cohen v. G&M Realty L.P.), where the Supreme Court compensated the artists whose works got destroyed for a total of $6.75 million, this is not the norm. Additionally, this case was unique because the 5Pointz artists, unlike most anonymous graffiti writers, were established in the art world. Moreover, the 5Pointz artists did not paint illicitly. Instead, they obtained permission and support from the property owner to paint. Therefore, symbolically, the Supreme Court’s decision to throw out the defendant landlord’s appeal is a victory for the arts. But doctrinally, the limitations of the extent to which VARA protects unknown graffiti writers and unauthorized graffiti are still largely undetermined.
COPYRIGHTABILITY AND GRAFFITI
Some graffiti artists choose to register their graffiti letterings with the U.S. Copyright Office. Yet, many graffiti taggers prefer to remain underground to avoid potential arrest. Therefore, it is possible to legitimize the graffiti design (combination of words, typefaces, ornamentations, colors, shapes, etc.) by registering a copyright for the totality of the work. However, once graffiti has been registered and formalized, it is no longer “underground” and illegitimate. Instead, like an act of betrayal to the real spirit of graffiti, once it is in the “system,” the graffiti loses its original intent to bend, trespass, and break the limit of social norms.
Plus, even if graffiti artists wish to document their work, getting certifications from the copyright office might not be their first choice. In most graffiti communities, taggers typically use a “black book,” like a tattoo design collection book or printer’s collection book, to document their collection of tags and throw-ups with sharpies and markers. The “black book” could be any drawing pad or notebook. It is loosely organized, just like the social organization of graffiti writers. Referring to the factual background of National Paint & Coating Ass’n v. the City of Chicago, the confederations of graffiti writers include “classes” (individual writers), “crews” (friends’ writers), and “networks” (mentor-protégé writers).
Graffiti writers pass around the “black book” and share design ideas like friends who share a photo album. However, it is hard to track who “owns” or “keeps” the “black book,” and there might be more than one black book. This secretive nature of the shared documentation of graffiti design and the communal spirits of being “outlaws” embodied in graffiti writers further pushed the graffiti communities away from the legal protections—getting a copyright registration and seeking VARA protection. Nonetheless, as part of the visual landscape that actively shapes and forms our shared urban environment, graffiti, both design and its community at large, deserves more recognition and protection from both the art world and the law.
Originally Written on February 18, 2022