Who Owns the Copyright on Graffiti?

Earlier I discussed a copyright infringement where the infringer took a photograph of a mural on the side of a building, and used the photograph (to which he did not have rights) to make coffee mugs, t-shirts and posters. This sparked quite a few questions about graffiti, and who owns the copyright to unauthorized “creative works” on the side of someone else’s building.

Graffiti has been referred to as “artistic vandalism” and a number of recent cases have explored what rights, if any, graffiti artists have over their work. Some graffiti artists are quite famous, and their work is considered to have commercial value; the British graffiti artist Banksy is one such notable example.

Remember that under copyright law, the author of a creative work owns the copyright, and has the right to prevent others from profiting from her works. Graffiti is a little different, however, because usually, the owner of the building on which the work is painted didn’t authorize the work, and in many jurisdictions painting graffiti is considered illegal vandalism. If the “art” is unauthorized by the building owner, then it’s hard to imagine that a vandal would have rights to control how the property owner uses the work. If the “artist” attempts to claim rights to the work, he or she risks being held liable criminally and civilly for the damage to the owner’s property. As a matter of public policy, wrongdoers are not allowed to profit from their crimes, and this legal concept is addressed in other legal contexts, such as the prohibition on a murderer taking his victim’s property under the probate statutes.

Copyright law doesn’t contemplate this issue of illegality in the creation of a work that is otherwise protected under copyright law. Case law provides some insight into the view of the Federal Circuit about the issue. Applying the “unclean hands” doctrine, the idea that a wrongdoer should not profit from his misdeeds, the Fifth Circuit noted that the doctrine would apply where the copyright claimant’s unethical behavior — vandalizing the owner’s property — would prevent the “artist” from claiming rights to his vandalism under the copyright statutes. Indeed, 17 USC § 202 explicitly states that copyright ownership “is distinct from the ownership of the material object in which the work is embodied.” In other words, you can own the copyright for the arrangement of the lights on the Eiffel Tower, but you don’t own the Eiffel Tower itself. The physical embodiment of the covered work — in this case, the wall on which the graffiti is painted — belongs to the owner of the building, and permits the owner to sell the original work along with the building, or remove the work from the wall — assuming that were possible — and sell that separately. Or the owner can destroy the piece by painting over it or otherwise obliterating it, because he owns the physical form upon which the original work is painted.

To sum up, the vandal/artist has rights to prevent others from reproducing his work, but doesn’t get to assert that right against the building owner because of the “unclean hands” doctrine discussed above. Third parties don’t have the right to make posters, photographs or other derivative works of the graffiti, but the building owner is allowed to create such derivative works because she has been injured by the artist’s unauthorized creation, and can assert a “copyright misuse” defense if the graffiti artist attempts to assert rights to the unauthorized work he created on someone else’s property. The owner of the building also has the right to preserve, paint over, or sell off the work as she so chooses. The moral of the story is that if you would like to assert copyright protection over your graffiti, make sure you have the building owner’s permission before you bring out the paint cans.

I’m on Facebook! “Like” my facebook page, http://link.trademarkdoctor.net/FB to be notified every time I go LIVE. Do you have trademark questions? Message me on the Trademark Doctor Facebook page, and I’ll answer your questions on a future Live video.

Who Owns the Copyright on Graffiti? posted first on https://trademarkdoctor.wordpress.com