As the interest in graffiti art has grown, so too have discussions in artistic and legal circles—including in the courts.  Graffiti was back in the news this summer, highlighted by an interesting trio of court cases involving various issues impacting this unique body of art.

Artist Shepard Fairey Faces Felony Charges Over Tagging

A prominent graffiti artist has been arraigned in Detroit on felony charges of malicious destruction of property.

Artist Shepard Fairey is perhaps best known for his “Hope” poster, which became an iconic image of President Barack Obama’s 2008 campaign.  He’s also no stranger to legal issues.  The “Hope” poster itself spawned multiple legal disputes.  For example, the Associated Press sought compensation from Fairey over his use of an AP photograph as the basis for his stylized image; Fairey sued for a declaratory judgment that his use of the photograph was protected as a “fair use” under copyright law (the case later settled out of court, but Fairey later was fined and sentenced to probation for contempt due to his litigation conduct).  In addition, Fairey has also been arrested more than a dozen times on vandalism-related charges.

But this summer, Fairey turned himself in on what authorities believe to be his first felony charges stemming from his “street art” activities.  The incidents allegedly occurred when Fairey traveled to Detroit to complete an authorized 18-story commissioned mural.  While in town, police say, he also did some unauthorized work, plastering his posters (including his famous “Andre the Giant” image) on at least nine locations throughout the city.  Authorities also say that Fairey’s use of wheat paste to affix posters to buildings makes it very difficult to remove the posters.  After surrendering to authorities, Fairey was arraigned on two counts carrying a maximum penalty of five years in prison, as well as hefty fines.

Some in the art community view Fairey’s vandalism activity as a strategy to retain credibility as a street artist even as he achieves greater recognition in traditional art circles; indeed, the publicity over his arrest comes as he prepares for a solo gallery show in New York, set to open in September.  As another commentator points out, the fact that Fairey is an acclaimed artist is no defense to criminal charges, but the Visual Artists Rights Act of 1990 (VARA) might provide a possible grounds on which he could try to prevent the destruction of the works at issue in Detroit, if he can show they are of “recognized stature.”  We will update this blog as the criminal proceedings unfold.

A New Lawsuit Over 5Pointz

We have previously covered in an earlier post a lawsuit filed by several artists against the owner of a property in Queens known as 5Pointz.  In short, the owner of the buildings, Jerry Wolkoff, for many years allowed local graffiti artists to create works on the walls of 5Pointz.  The owner even appointed one artist as a volunteer “curator” to select artists whose work would be displayed and to ensure that the work adhered to certain standards.  Over the years, the site became a tourist attraction; having work displayed at 5Pointz became a point of pride for artists.  In October 2013, after the owner announced plans to demolish the buildings at the site, a group of artists sued Wolkoff and other owners to prevent the destruction of the works under VARA (see 17 U.S.C. § 106A).  A federal court (E.D.N.Y. Docket No. 13-cv-05612) refused to issue a preliminary injunction to preserve the works while the lawsuit proceeded, concluding that the artists had not shown sufficient “irreparable harm” to warrant injunctive relief.  Shortly after that ruling, the building owner whitewashed the site. That case is ongoing and in the discovery phase; although the plaintiffs there can no longer seek to protect the works, they continue to pursue damages.

In June 2015, a new group of plaintiffs filed a separate lawsuit, also seeking damages under VARA.  The new complaint (E.D.N.Y. Docket No. 15-cv-03230) asserts, among other things, that the whitewashing was “gratuitous and unnecessary” given that the buildings were already slated for demolition, and had the effect of denying plaintiffs the opportunity to remove, preserve, or document their work before the demolition.  The plaintiffs also claim the whitewashing was “intended to cause intense shock and emotional trauma by inflicting an egregious public insult,” and “was carried out in a disgracefully crude, unprofessional manner” “calculated to cause maximum indignity and shame to Plaintiffs,” noting that some works were only partially obliterated and some of the white paint was applied to look like a “smiley face.”  The plaintiffs also invoke a specific provision of VARA, 17 U.S.C. § 113(d), which they say required the defendants to give the artists 90 days’ notice.

As a side note, there’s been a separate skirmish over 5Pointz; in late 2014, Wolkoff announced his intention to trademark the name “5Pointz” to use in marketing the new condominiums being built on the site of the now-demolished graffiti repository.  Interestingly, Wolkoff has said that he plans to reserve space in the new development for graffiti artists, although the gesture has not been well-received by his critics.  The former curator of 5Pointz’ graffiti says he, not Wolkoff, came up with the name, and many artists have protested, saying that the name represents the artist community.  The U.S. Patent and Trademark Office, for its part, denied Wolkoff’s application in 2014 and again in early 2015, saying it was too similar to an unrelated real estate development in California.

This coming November will mark the two-year anniversary of the whitewashing, and emotions still run high when it comes to 5Pointz.  We’ll continue to monitor the two pending lawsuits.

Graffiti Artist Sues Moschino

In the last of this trio of cases, in mid-August a graffiti artist named Joseph Tierney (who goes by the name Rime) sued Italian fashion house Moschino and its creative director, Jeremy Scott, for copyright infringement and other claims arising out of Moschino’s alleged copying of Rime’s commissioned graffiti artwork “Vandal Eyes,” and even Rime’s signature, for use on dresses and other clothing in its Fall/Winter 2015 Collection, as well as in associated marketing materials.  In particular, he points to the fact that pop star Katy Perry wore one of the allegedly infringing dresses to the Met Gala earlier this year, accompanied by Scott who wore a coordinating suit containing images from “Vandal Eyes.”

Tierney alleges that Moschino and Scott have benefited from their infringement, while the artist’s reputation and “street cred” were tarnished by his perceived association with the luxury brand.  In addition to copyright claims, he asserts claims under the Lanham Act and California state statutes, arising out of Moschino’s incorporation of the artist’s name and signature onto various pieces in its collection.  He seeks multiple forms of relief, including injunctive relief that would include destruction of the infringing pieces, as well as disgorgement of profits, and punitive damages.

For its part, Moschino has issued a statement that many of the allegations are false and that it intends to contest the lawsuit (see C.D. Cal. Docket No. 15-cv-05900).  As Artnet News points out, the case represents a trend in which street artists are taking legal action to defend their work from copyright infringement by consumer brands.  In recent years, graffiti artists have sued brands like American Eagle, Coach, Cavalli, and Starbucks, as well as other artists like musician Sara Bareilles, filmmaker Terry Gilliam, and rock band Green Day, for unauthorized use of graffiti art in connection with products or projects.  The trend suggests a common confusion over street art, a misperception that graffiti enjoys no copyright protection (a mindset that parallels the widespread misperception that content made available on the internet may be copied with impunity).  Or perhaps the misperception is not a legal one, but rather a practical assumption that street artists will not take steps to defend their copyrights—but the wisdom of such a gamble is being rapidly undermined as more cases like Tierney’s arise.

Three Cases, Three Different Legal Conundrums for Graffiti Artists

Taken together, these three cases illustrate the complex legal framework surrounding the growing world of graffiti art.  Artists who do their work on someone else’s property without permission may face civil and criminal liability for their conduct.  At the same time, VARA may provide these artists with some limited ability to protect their original creations from being destroyed (or to seek compensation if they are destroyed).  And graffiti artists also can assert a copyright in their original works, and can take legal action against those who seek to copy or exploit those works without permission.  Thus, while graffiti artists face legal risks, they also have some legal tools at their disposal to protect their creations.