Should Graffiti Artists be Paid for Use of their Work?

  • Aug 19 2018
  • |
  • Category: News

Once considered a low-life act by individuals who lacked the respect to keep their community clean, graffiti is now perceived as true artwork (“aerosol art”). Not only is it having a true artistic renaissance, but it has now found a place in corporate business and mainstream society. Often featured as the backdrop for ad campaigns and fashion brands, what was viewed as a crime fit for punishment, is now considered a marketable form of expression.

Although the perception of graffiti has greatly transformed over the years, the law has yet to change its tune. This includes when it should be provided copyright protection. This month in California, a court plans to take on just that question and finally resolve the issue of whether graffiti artists should be compensated for the use of their art, or if companies are entitled to include their work without consequence.

Falkner v. General Motors Company

In the lawsuit, Falkner v. General Motors Company, Adrian Falkner, a Swiss graffiti artist who goes by the name of Smash 137, filed suit against General Motors in Los Angeles in Federal District Court, when a Freelance photographer utilized his commissioned mural as a backdrop for a Cadillac ad campaign, “Art of the Drive.” Without Falkner’s knowledge or approval, the images were shared on social media, including Facebook, Twitter, and Instagram.

It seems as though in theory, federal copyright law would extend its protections to graffiti, as any original work that is “fixed in a tangible medium of expression” is granted copyright protection.  However, Courts are now taking into consideration that there may be a distinction in the law, differentiating graffiti that is commissioned, from that which is unauthorized, and thus illegal. Is there a difference between commissioned murals and words scribbled on the inside of bathroom stalls? Do both deserve the same protection?

A History of Disputed Rights

This is far from the first time that graffiti artists have attempted to fight for the protection of their work. In 2014, three graffiti artists including Jason Williams, who used the tagging name of Revok, sued fashion designer Roberto Cavalli, on the grounds that he had infringed upon their copyrights by using parts of a mural that they painted in his line for clothes, shoes, and handbags. However, the question was never taken to a judge for consideration, as the case was settled out of court for an undisclosed amount of money.

Earlier this year, Williams was involved in a copyright dispute with the clothing company, H & M, after it had used a mural that he painted (illegally) in one of its advertisements. H & M countersued, asking a judge to declare that Williams was not entitled to copyright protection, as he had painted the mural without permission. However, once again, before a judge could rule on the case, H & M reacting to growing criticism against the company dropped its suit and its ad campaign.

In another important case, a group of graffiti artists in Brooklyn were awarded $6.7 million, after their work, which had been continuously commissioned for the side of a renowned complex, had their work destroyed under the Visual Artists Rights Act, when the same building was demolished. The Act protects public art of “recognized stature” that is created on another’s property.

Architectural Works

In Falkner, G.M. has argued to end the lawsuit based upon a provision in the law, which states that “architectural works” do not have copyright protection. The company claims that because the art was “incorporated into a building,” it was not protected under the law. However, it is argued that if a parking garage is to be considered an architectural work, it would create widespread consequences, leaving just about every building to fall within that which does not provide artists protection. This could serve to change the entire landscape of artwork protection.