When It Comes to Graffiti and Copyright, the Writing Is Not Always On the Wall

Columbia Law School's Kernochan Center for Law, Media, and the Arts Hosts Discussion Among Experts About the Ambiguous Nature of Copyright Law as Applied to Street Artists

New York, November 7, 2014—When Columbia Law School alumna Erin Thompson ’10, the first art law and art crime faculty member at John Jay College of Criminal Justice, testified as an expert in a graffiti copyright case last year, The New York Post called her “a bespectacled art professor.” 

“It was the highlight of my career,” Thompson said drily to a packed room of students and guests who had gathered for an Oct. 30 event sponsored by the Kernochan Center for Law, Media, and the Arts.
But all joking aside, the case—and several other high-profile matters in which graffiti or street artists have asserted copyright as a means of protecting their work—are shining a light on the ambiguous state of the law as applied to things like murals and sidewalk art.
Thompson was joined on the panel, “The Writing Is on the Wall, But Is It Protected: Graffiti and Copyright,” by Nick Riggle, a visiting assistant professor of aesthetics and the philosophy of art at Lafayette College, and Andrew Gerber, an attorney at Kushnirsky Gerber who represents street artist David Anasagasti in a copyright infringement case. Anasagasti’s case against American Eagle Outfitters, which used Anasagasti’s work without permission in advertisements, is pending.
Kernochan Center Deputy Director Philippa Loengard ’03, whose research focuses on intellectual property issues surrounding the visual arts and entertainment industries, moderated the event. Loengard set the stage by reminding attendees that although street art is in the public sphere—outside where people can see it for free—it is not necessarily in the legal public domain. The question of who owns, can use, or may destroy graffiti has come up in several cases recently, including Anasagasti’s and the one in which Thompson testified.
Riggle provided an overview of some of the types of sanctioned and unsanctioned art at issue, including murals, sculptures, stencils, projections, and performance art. He noted the works of artists ranging from Mark Jenkins, who has turned parking meters into giant lollipops, to C. Finley, who has used wallpaper to beautify dumpsters. Riggle also noted the ambiguity and variance among laws that govern street art and graffiti.
“Many of them aren’t even very clear about what graffiti is,” he said.
Thompson built on that theme. When famed graffiti artist Banksy painted a picture of a girl on a swing on the side of a Los Angeles building earlier this year, he was celebrated, she said. When another graffiti artist painted over the work, that artist was arrested and charged with felony vandalism.
Such disparate outcomes “make us think about how strange it is that graffiti artists can claim copyright protections for a work they can also be arrested for,” Thompson said.
Gerber said there haven’t been many graffiti copyright cases over the years, which means the case law is inconclusive on questions like how to determine damages when a court finds an artist’s copyright has been violated.
“I’m excited to see that a lot of street artists are starting to lawyer up,” he said. “It’s nice to see artists asserting their rights.”
The event was held as part of the Kernochan Center’s ongoing IP Speaker Series.