Counterculture emanating from graffiti, which is much more than often regarded as public nuisance and vandalism to government and private property, has embraced a position in the center-stage for it crosses paths with the domain of Intellectual Property (IP). The obvious question that arises next is, “Does any legal right stem from such unlawful acts of unauthorized street art and scribbling?”

Copyrights on subculture artforms

To begin with, ‘Graffiti’ covers a broad array of works, including spray-painting and street art depicting signatures, throw-ups, murals, or other art forms, which may or may not be made with due permission upon walls, trains, subways, and where not. Even though most of the graffitiis made without prior or ex post facto consent of the owner of the property, artists often lean towards the constitutional rights to safeguard their creation clothed in the form of ‘freedom of expression.’ The same is contrary to the principle of ex turpi causa non orituractio, which translates to the fact that unclean hands are not welcomed to the court of law. This principle, if applied upon the subject of graffiti, would be an unfair restriction on ‘content-neutral’ art and creative expression.

The basic framework of any copyright law lies in the fact that such protection is extended to the works of creativity provided, the work is ‘original’ and is reduced on any tangible form, which could range from a simple piece of paper to a complex 3D medium standing as tall as a building.

Elaborating on the aspect of ‘originality,’ the following approaches are followed:

  • The Sweat of the Brow doctrine– It doesn’t require a substantial deal of creativity to be depicted; borderline effort, time, and money invested by the creator would be sufficient to reap the benefits under the copyright law. Due to the minimum threshold of creativity assigned in this doctrine, the concept of originality shifted the paradigm to ‘modicum of creativity.’
  • The doctrine of Modicum of Creativity‘- It was first introduced in the case of Fiest Publication Inc. vs. Rural Telephone Service, which brought forth the concept of ‘skill, labor, and judgment’ as a three-prong test.

 The extent of ‘originality’ and ‘fixation’ required 

If the requirements of ‘Originality’ and ‘Fixation’ are met, the work becomes copyrightable as soon as it comes into being without any further ado, which also stands true for graffiti. As mentioned above, the standard of originality does not have to be revolutionary, but at the same time, it cannot be very trivial. The determination of ‘originality’ is very subjective, depending on each case.

Furthermore, the law does not mention that fixation ought to be in a legally prescribed format, so here – the law is at a loose end. Let us take into consideration the pictures taken by paparazzi or video content created for uploading on YouTube channels by featuring people without seeking their permission. Is the manner and medium of fixation not illegal here? It is, and yet, it is protected under the copyright laws of different countries. Such acts are criminalized, but they are not beyond the preview of copyrights since artistic rights are independent of the physical manifestation, as they are a “creation of the mind and human intellect,” and have nothing to do with the medium of showcasing creativity.

Furthermore, the law does not speak of fixation for a fixed duration. It is well-known that graffiti are ephemerals and can wither out due to wear and tear, being painted over, or lack of maintenance. This temporary existence, although not ideal, still meets the requirements within the law. It is for this reason that after gaining recognition, many graffiti artists shifted their manner of depicting creativity by fixing the works on the canvas. For instance – famous artists like Keith Haring, Os Gemeos, amongst many others, evolved into legal art to commercialize their creations since unlawful unclaimed art is often designated as a part of ‘orphan works.’ Copyright restrains and makes punishable only those acts, which violate the copyright law itself and nothing beyond that premise.

Rights ensuing from copyright protection

It goes unsaid that from copyright emerges a set of rights, including the right to reproduce, adaptation, publication, public performance, etc. Hence, graffiti cannot be considered as falling under the public domain, and prior permission is warranted. It is for this reason that artists like Julian Rivera rose against Ellen DeGeneres for using his distinct ‘Love Logo,’ which Ellen affixed on her clothing line. Such instances may be few because it requires weighing the pros of copyright against the negatives of criminal prosecution. The choice is much more than obvious. Also, in defense of extending rights to graffiti artists, it is pertinent to know how capable such art forms are of extracting commercially viable outputs. Yet, the ‘de minimis’ doctrine, as opted for in the Gayle vs. HBO case and the principle of illegality, are resorted to by the infringers of these rights, giving trivial importance to graffiti art. A recent judgment in favor of the artist was observed in the 5Pointz case wherein graffiti was regarded as constituting works of ‘recognizable stature,’ thereby awarding a sizable lump sum of $6.7m as compensation for unlawful destruction of work. Therefore, the line between ‘street art’ and ‘fine art’ is gradually blurring, increasing the applicability of copyright laws.

A solution to the problem of the illegitimacy of such art forms

To conclude, copyright is a new-fashioned approach for graffiti artists to protect their creative expressions. Therefore, a clear line must be demarcated to afford better protection to these works at par with other creative expressions. Lack of literature and precedents on the subject matter requires judicial activism beyond established norms or building legislations like the American Visual Artist Rights Act, which embrace moral and economic rights originating from such art forms to keep up with the times and raging interests of creative intellects. The same would enable artists to rise against unauthorized use of their art by others instead of being set-aside as constituting ‘immaterial use’ or ‘de minimis’ to infringing acts of application of such art.