Celia Lerman, Protecting Artistic Vandalism: Graffiti and Copyright Law, 2 N.Y.U. J. INTELL. PROP. & ENT. L. 295, 295 (2013)(online link)
Introduction
Does copyright law protect graffiti? This is a question of growing importance in today’s art scene. Books, CD’s, t-shirts and other items featuring graffiti images are often released without permission from the original graffiti artists. For a recent example, take the graffiti exhibition mounted in a Buenos Aires art gallery by Peruvian artist José Carlos Martinat. Martinat’s exhibition consisted of appropriated pieces of graffiti that he had carefully removed, without permission, from the walls of private properties in Buenos Aires. Martinat also offered these pieces for sale. Local graffiti artists reacted furiously to this exhibition and collectively destroyed all of their graffiti pieces in situ during the gallery’s opening night. Examples like this lead us to wonder if graffiti artists could receive any protection under copyright law.
At least some pieces of graffiti are suitable for copyright protection, insofar as they are original works, fixed in a tangible medium of expression. Still, why should we protect expressions created by an illegal act (painting a third party’s property without her permission)? Should the law help graffiti artists to benefit from their transgressions? Moreover, if the primary purpose of copyright is to incentivize the creation of valuable creative works, should we protect and promote illegal art?
