Outlawed Art: Finding a Home for Graffiti in Copyright Law (DRAFT)

Abstract

An intractable tension exists between the existence of graffiti as iconoclastic youth expression and the emergence of its recognition as an art form, and the boundaries of American copyright law. As graffiti gains more traction in the mainstream art world, copyright law has come to frame much of the discussion surrounding the rights that stem from (and that are overlooked by) the creation of these works. While graffiti is heralded for its uniqueness, it also thrives in a culture of appropriation that encourages dialogue among graffiti artists, in addition to establishing as the norm the pilfering of everyday cultural referents for artistic use. On the one hand, the Copyright Act grants protection to all original works of authorship fixed in a tangible medium of expression, which ostensibly could include illegal works of graffiti. On the other hand, the rights that could be extended to graffiti artists are limited by the nature of graffiti itself - by virtue of its illegality, there is the risk that works lose a layer of protection when pitted against the property owners whose buildings act as unwitting canvases, and other artists from whom a graffiti artist/secondary user culls material for his own work. This Paper addresses the competing interests and tensions that arise from these considerations, ultimately asking the question whether copyright law can find any coherence in the culture and art of graffiti.

Keywords: graffiti, art, copyright, visual artists rights act, intellectual property

JEL Classification: K3, K19, K42, O34