At our law firm, we help people protect intellectual property rights in their creative works using copyright law. Commonly copyright-protected types of works include music, art, software and books and others. A developing area of copyright law is the extent to which graffiti — now dubbed aerosol art, according to The New York Times — can obtain copyright protection.
The legal question perhaps parallels cultural evolution. The Smithsonian Magazine has quoted Tumelo Mosaka, a curator at the Brooklyn Museum, as describing the placement of graffiti into respected art galleries as “a recognition that cultural expression can exist outside conventional canons.”
So many scenarios could add complexity to the legal questions involved. Was the graffiti itself created with or without the permission of the owner of the surface used? Was it commissioned? Has the work gained notoriety or fame or is it obscurely tucked away in a quiet neighborhood? In what way has another party used it and has it brought financial gain to that other party? Does the artist lose something of value if the owner of the surface paints over it or tears down the building?
De minimis use
In one New York City case, a federal judge dismissed a graffiti artist’s lawsuit against HBO for a couple-second clip in a TV show in which the plaintiff’s graffiti on a dumpster showed up in the background of the scene. The court said this flash of art was a “de minimis” use not protected by copyright because the use was so trivial it added no value to the second work and was not substantial enough to establish similarity.
As of this writing on July 19, 2018, a case is pending in federal court in California in which General Motors used graffiti on a car ramp wall in online Cadillac advertising. The artist, who is internationally prominent, is claiming copyright infringement and asking for compensation for the use of his art, which had been commissioned by the ramp owner.
The New York Times says that GM’s lawyers are arguing that the graffiti here is unprotected because it is part of “architectural works” that copyright does not protect. The artist’s attorney has responded that the exception for architecture is to protect people who snap pictures of famous buildings. The Times quotes him as writing that if GM’s argument prevails “all graffiti art that exists on a building — that is, most graffiti art — would suddenly be unprotected by copyright.”
We will watch the outcome of this case with interest for its potential impact on protections for graffiti and similar expression.