Copyright in Graffiti? Yes.

September, 2015

 

A Brooklyn-based graffiti artist named Rime recently filed a lawsuit against designer Jeremy Scott and his fashion house Moschino alleging that the designer and fashion house stole Rime’s graffiti art work.

Rime created a mural on the outside wall of a building at the request of the building owner in 2012.  The mural is called Vandal Eyes.  It is this mural that Rimes alleges Scott and Moschino stole and put onto clothes, such as a dress Katy Perry wore to a gala event.

Rime argues in the lawsuit that the graffiti, Vandal Eyes, is an artistic work protected under copyright law.  Rime says that the use of Vandal Eyes without his consent infringed his copyright ownership in the work and damaged his reputation, as ‘selling out’ to a European fashion label is antithetical to the outsider ‘street cred’ that is essential to graffiti artists.

 

Is Graffiti Protected Under Copyright? 

Three things must exist to gain copyright protection.  One, a work capable of protection, such as a literary, musical, artistic, or dramatic work.  Two, the work must be original.  Three, the work must be expressed in some material form (not just an idea in someone’s head).

Graffiti is an artistic work.  Assuming the work is original and expressed in a painting, copyright protection should arise.

Some would pause and think about whether graffiti would be protected under copyright law simply because of the nature of what graffiti is.  The public nature and style of graffiti, along with the anti-establishment political causes associated with graffiti art, cause people to take a different approach when assessing graffiti art as opposed to fine art.  Under copyright law any difference in the approach would be incorrect.  Any work of artistic craftsmanship, whether graffiti or fine art, is capable of acquiring copyright protection.

However, there are a few limits on copyright protection for copyrighted works displayed publicly.

 

Publicly Displayed Copyrighted Works

The Copyright Act has two very precise exceptions to infringement of copyright of a publicly displayed copyrighted work.

The Copyright Act says that copyright in a work is not infringed if any person reproduces, in a painting, drawing, engraving, photograph or cinematographic work, either an architectural work (but not architectural drawings or plans) or a sculpture or work of artistic craftsmanship that is permanently situated in a public place or building.

This exception should protect you if you happen to snap a picture in a public area and your picture includes a sculpture permanently situated in a public place.

 

Incidental Inclusion

The Copyright Act also grants an exception to copyright infringement when a copyrighted work is incidentally and not deliberately included in something else, such as another copyrighted work.  This exception is often invoked in the case of live television broadcasting where billboards and other advertisements may appear behind a reporter or where music is being played around the reporter.

 

Conclusion

If you intend to deal with a copyrighted work that you do not have the permission to use, you must ensure that whatever use you intend to make of that work falls into one of the narrow protections in the law.  Any judgement on the nature or quality of the work is irrelevant to whether its use is protected under the law.

 

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Ryan K. Smith is a Lawyer and Trade-mark Agent at Feltmate Delibato Heagle LLP.  He is a corporate and commercial lawyer with expertise in all manner of intellectual property matters including trade-marks, copyrights, domain names, and confidential information.  You can reach Mr. Smith at (905) 287-2215 and rsmith@fdhlawyers.com.