Can graffiti be copyrighted in the United States?

Copyright is a set of exclusive rights granted to the creator of an original work of art. When an artist creates a new painting, a musician creates a new song, or an author creates a new book, they are granted the exclusive right to copy distribute and sell their creative work. When someone copies or sells a copyright work without permission of the copyright owner that is considered copyright infringement. A copyright owner can sue to get an injunction against copyright infringement and get money damages.

Art is a subjective topic. Art to one person might not be considered art to another person. Copyright law in the United States defines a number of different types or works which will be protected. Works which will be protected include pictorial, graphic, and sculptural works 17 U.S.C. § 102(a)(5). Copyright law does explicitly exclude some subject matter from protection, but those exclusions are related to abstract ideas and functionality. For instance an artist can copyright their drawing of a tree, but other artists are still free to make their own drawing of a tree.

Graffiti is writing or drawings scribbled, scratched, or sprayed illicitly on a wall or other surface in a public place. Graffiti artist use someone else’s property as the canvas for their art. Municipal governments and private property owners spend millions of dollars a year cleaning graffiti from their property. Graffiti is typically considered a nuance because it defaces property, but some graffiti artists are so talented that their works are loved by the public. Famous graffiti artists works are tolerated and sometimes celebrated. Some famous graffiti artists are commissioned to decorate public spaces with their style of art.

Because of the public adoration for some graffiti artists, some companies will try to incorporate graffiti into their advertising campaigns. Graffiti is typically displayed publicly so there is nothing to stop a clothing companies from taking promotional pictures of clothing models in front of a graffiti covered wall. The clothing company hopes that the adoration for the graffiti artist’s work will translate into more sales.

Examples of companies using public graffiti for advertising are: American Eagle Outfitters using David Anasagasti’s graffiti in 2014 and H&M using Jason Williams’ graffiti in 2018.

Typically using a copyrighted work in a commercial advertisement would be a clear case of copyright infringement. Graffiti adds one complication, it is embodied on someone else’s property. Companies that use graffiti in advertisements argue that because the graffiti was applied to someone else’s property, in public, without permission, it is not eligible for copyright protection.

Specifically in the case of H&M using Jason Williams’ graffiti in 2018, H&M claims that the graffiti was illegally placed in a New York City Park and that copyright protection is a privilege under federal law that does not extend to illegally created works.

H&M makes a point, but it might not be supported by copyright law. There is no explicit provision in United States Copyright Law which excludes art placed without permission from copyright protection and H&M fails to cite any case law to backup their arguement. Copyright law grants a copyright when art is fixed in a tangible medium (in this case, paint on a wall in a park), the law is silent about who needs to own the tangible medium. Indeed physical ownership of a copyrighted object and ownership of the copyright are separate things. Copyright law explicitly give the artist the exclusive right to make copies of a copyrighted work, purchasing a copy does not give the purchaser the right to make copies.

It will be interesting to see how this case plays out. If Mr. Williams wants to file a suit for copyright infringement he will need to register his copyright in the work. At that point the United States Copyright Office will have to make a decision on whether they think the artist needs to own their canvas to be granted a copyright.

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