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Should Graffiti be Protectable?

By Monique Henson, Trainee Patent Attorney

Graffiti has undergone a transformation of sorts in the past couple of decades. Once considered to be a blight on neighbourhoods, graffiti now draws in crowds of thousands for festivals and may even boost house prices. Retailers, influencers and fast-food restaurants have sought to capitalise on this trend, using graffiti as backdrops for ad campaigns and to decorate restaurant walls. In the US, this has led to a number of legal questions being raised in the courts – is graffiti entitled to copyright protection? If the artwork was created illegally, does copyright still subsist? Here we’ll briefly consider the situation in the UK.

Does copyright subsist in graffiti?

According to the Copyright, Designs and Patents Act (CDPA) 1988, a work must be original for copyright to subsist. This isn’t a measure of the artistic quality of a work, and is instead a question of whether the author expended more than trivial degree of independent skill and labour. In other words, whether or not you think graffiti is beautiful, it’s quite likely that many works of graffiti meet this requirement.

What if the work was created illegally?

Despite cities starting to provide legal walls for graffiti artists, it’s still very much the norm for graffiti to be produced illegally. In the US, it’s been argued that copyright shouldn’t subsist for an illegally created work, as it would allow the artist to profit from an illegal act. For example, in response to receiving a cease and desist letter alleging that H&M had included graffiti in an advertising campaign without the artist’s consent, H&M filed a suit arguing that the artwork shouldn’t be protected by copyright if the artwork violates the law. It’s not clear how successful this argument would have been, as H&M ended up withdrawing the suit after an intense backlash on social media.

In the UK courts, it’s a general principle that some legal remedies may be denied to a claimant if they are responsible for misconduct in relation to the claim (referred to as the doctrine of clean hands). However, that is a question of the remedies that are available to an artist, rather than whether copyright subsists in the first place.

In terms of statutory provisions, the CDPA is silent on whether the legality of a work affects copyright, although it states that the enforcement of copyright may be restricted on the grounds of public interest. However, this provision has largely been used for restricting copyright based on the content of the work (e.g. for obscene, libellous or immoral works), rather than restricting copyright based on how the work was created.

Another point to consider is that works of graffiti are often based on sketches that the artist prepares beforehand. Thus, even if copyright is not deemed to subsist in illegally created artwork (e.g. artwork applied to a wall without permission), an original sketch upon which the illegally created artwork was based may still give the artist enforceable rights.

What does this all mean?

We’re yet to see a judgment on a copyright case concerning graffiti in the UK courts. However, it is likely that many works of graffiti are entitled to copyright protection, and it will be interesting to see if graffiti artists start trying to enforce those rights in the UK. It’s also worth noting that the CDPA provides authors with a number of moral rights, including the right not to have the work subject to derogatory treatment. It’s still not apparent how broadly these rights might be applied in relation to graffiti (e.g. does changing the context of a work – such as moving a Banksy from a garage wall to a gallery – amount to derogatory treatment?), so the legal situation is far from clear.