Earlier this year, 23 prints created by the iconic street artist Banksy, sold at Sotheby’s for a collective amount of 2 million GBP. Professional artists are increasingly wandering out of their studios and turning to brick walls, blank billboards, and even the backs of delivery trucks as canvases for their work. As the line between fine art and street art becomes increasingly blurred, an important question arises: should the legal treatment of graffiti be reevaluated?
Under federal copyright law, an author is not required to register his or her work to receive copyright protection. Copyright crystallizes the moment the work is fixed in a tangible form for longer than a transitory period, so long as the work originated from a human author and meets certain minimal standards of creativity. In accordance with this doctrine, then many forms of street art should be granted copyright protection.
Yet, granting copyright protection to graffiti also raises many policy and practical implications. In many cases, for instance, the graffiti artist did not receive the property owner’s permission before applying paint to the surface of the property. A question therefore arises over whether copyright protection can be granted to an illegal work. As Lerman explains in her article Protecting Artistic Vandalism, the Copyright Act differentiates between the physical fixation of the work and the artist’s expression. As such, “under copyright law, it is irrelevant if there are illegal elements in the tangible embodiment of a work (i.e., applying paint to a wall without the owner’s permission) or if the tangible embodiment of a work belongs to someone other than the author of the work. The rights (and wrongs) related to the work and to its tangible embodiment are independent, and one should not affect the other.” However, granting copyright to illegal street art also does not negate the work’s illegality. Would it therefore be contradictory to allow artists legal recognition and legitimacy over their graffiti while charging them with criminal vandalism for producing the same work?
In Cohen v. G&M Realty, the court confirmed the legitimacy of graffiti art. The plaintiffs in the case argued that VARA protections should be afforded to graffiti artists whose work covered the walls of 5Pointz, a popular mural space in Astoria. The Visual Artists Rights Act endows visual artists with the right of attribution and integrity, signifying the legislative recognition of an artist’s moral rights. Specifically, VARA grants artists the right to “prevent any destruction of a work of recognized stature.” In deciding the case, the Second Circuit held that VARA protections could apply to graffiti art. As long as the work was “viewed as ‘meritorious’ and its stature… recognized by ‘art experts, other members of the artistic community, or by some cross-section of society’, the mere fact that a work of art was presented through the medium of graffiti did not preclude the court from finding it as a work of “recognized stature. The holding of the case demonstrates the legal willingness for courts to recognize the moral rights that graffiti artists deserve and granting them the same level of legitimacy as traditional artists.
Yet, allowing copyright protection for street art may significantly disrupt a wide range of other industries. For example, streets plastered with graffiti are also often the settings for movies and urban photography. If a graffiti artist claims exclusive reproduction rights over their work, will movie studios and photographers be forced to negotiate with the artist for licensing rights, lest they face infringement claims?
In Gayle v. Home Box Office, Inc. the Southern District of New York heard just this issue. In this case, the plaintiff was a graffiti artist whose work was captured in HBO’s television show, Vinyl. Gayle sued HBO for copyright infringement, trademark infringement, and unfair competition. In response, HBO argued that their use of Gayle’s work was de minimis, or so trivial and slight as to be disregarded by the court. The court ultimately found in favor of HBO, dismissing the claim entirely.
Despite the court’s holding, Gayle should not be taken as the last word on the topic. A case could foreseeably arise in which a cameraman’s inclusion of another’s graffiti surpasses de minimis use. For example, in Ringgold v. Black Entertainment TV, an image of the plaintiff’s quilt was used without her authorization in the defendant’s television show. The Court of Appeals found that the defendant’s inclusion of the image exceeded the de minimis threshold and constituted actionable copying, despite the fact that the image only appeared on screen for a few seconds. Such precedent would suggest that inclusions of graffiti beyond a de minimus threshold would constitute infringement.
However, policy considerations would also encourage the Court to deny an action of infringement. In Garcia v. Google, for instance, the Court dismissed an actress’s claim of copyright for her five second performance in the defendant’s movie trailer. The Court held that the policy and economic implications of allowing each creative producer in a movie to claim copyright over their contribution would allow a massive floodgate of copyright litigation and effectively freeze the movie industry. The same logic may apply to the case where a graffiti artist’s work appears in the background of the scene of a movie or television show. Allowing one graffiti artist to claim infringement for the unauthorized reproduction of their work could result in a slippery slope, in which the author of any billboards, posters, or store front designs that also appear the background of a movie scene could similarly claim infringement.
This matter of graffiti copyrightability will surely emerge again in the future. Until legislation passes a definitive statutory answer, however, courts will be forced to wrestle with reconciling legal doctrine, public policy concerns, and economic interests in deciding this issue.
 Benjamin Sutton, Banksy’s Rapidly Rising Market, Explained, Artsy Sept. 23, 2020, https://perma.cc/V7RW-QDC6.
 Sotheby’s, From the Streets: The Rise of Urban Art, Sotheby’s Nov. 9, 2017, https://www.sothebys.com/en/articles/from-the-streets-the-rise-of-urban-art.
 See 17 U.S.C. §101; see Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, (1991).
 Cecilia Lerman, Protecting Artistic Vandalism: Graffiti and Copyright Law, 2 N.Y.U. J. Intell. Prop. & Ent. L. 295, 317.
 Cohen v. G&M Reality L.P., 320 F. Supp. 3d 421, (2018)
 17 U.S.C. §106A
 320 F. Supp. 3d 421, 1719 (2018)
 2018 U.S. Dist. LEXIS 73254 (S.D.N.Y., 2018).
 Supra note 5, at 635.
 126 F.3d 70 (2d Cir. 1997).
 Supra note 6, at 73.
 786 F.3d 733 (9th Cir. 2015).
 Supra note 8, at 8 (“Creating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.”)