Graffiti As Protectable Art

I recently addressed the question of whether graffiti is protected by copyright. The question revolved around one’s right to incorporate someone else’s graffiti into another visual artwork.

Here’s my opinion on the matter:

Copyright protection is available for “any original work of authorship that is fixed in any tangible medium of expression”. That language comes directly from the Copyright Act and means that creative works – like books, films, art, etc. – are protected by copyright as soon as they are written down, typed into a computer, recorded on film, drawn on a napkin - or even a wall, etc.

Graffiti has special features:

Often, the venues on which the graffiti artists draw do not belong to them. The artists do not have permission from the property owners and, in fact, their “creative work” may be viewed as vandalism. Finally, graffiti is often promptly removed. Nevertheless, I am not aware of any legal cases or other authority suggesting that copyright is unavailable or diminished for any of these reasons.

However, I’ve never researched this specific issue and there may be a relevant case out there. In any case, I would start with the theory that the graffiti is subject to copyright protection – until I found specific legal support to indicate otherwise.

Is the Graffiti Original?

One concern I would address before re-using any graffiti on another work is whether the graffiti is actually the original work of the graffiti artist. If the graffiti artist copied the design from a magazine, postcard, etc., the original creator of the design might be someone who will challenge its use on your work. I would also look at whether the graffiti includes any images of recognizable people or products – which could trigger privacy, publicity, or trademark issues.