An Examination of Graffiti Protection and the Social Obligation Theory of Property

• Publication year: 2022

An Examination of Graffiti Protection and the Social Obligation Theory of Property

Chelsea Kim

AN EXAMINATION OF GRAFFITI PROTECTION AND THE SOCIAL OBLIGATION THEORY OF PROPERTY

ABSTRACT

With graffiti art booming, artists all around the world want their creations protected. Current copyright laws in the United States as well as Europe are incentive-based; however, this is an inadequate justification for protection when many artists are motivated by social contribution to the community. This Comment discusses graffiti protections under intellectual property law from an international standpoint—comparing the United Kingdom, France, Greece, and Germany—then analyzes graffiti protections under a progressive property theoretical framework. This Comment argues that the progressive property approach would support the need to better protect graffiti art under copyright law and to contemplate the interests of both artists and the property owner. It also argues that Germany could be a global leader in setting norms surrounding graffiti protection. A combination of U.S. case law on graffiti art and Germany's inclusion of social obligation in its property laws could pave the way for more protective street art protections internationally.

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TABLE OF CONTENTS

INTRODUCTION.............................................................................................540

I. BACKGROUND...................................................................................543

A. Current Legal Status of Graffiti................................................ 543
B. What Is Graffiti? Evolutions and Transitions........................... 545
C. Graffiti in Society ..................................................................... 548
D. What Motivates Graffiti Artists? ............................................... 550
E. Problem: Do Graffiti Artists Need Stronger Legal Protection for Their Work? ........................................................................ 551

II. GRAFFITI AND IP PROTECTION..........................................................553

A. Treaties and International Norms ............................................ 553
B. Rules in the United States ......................................................... 556
C. Rules in Europe ........................................................................ 562

1. United Kingdom ................................................................. 562
2. France ................................................................................ 563
3. Greece ................................................................................ 564
4. Germany............................................................................. 565

III. PREVAILING THEORETICAL JUSTIFICATION FOR COPYRIGHT PROTECTION CRITIQUE......................................................................567

A. Incentive-Based Theory............................................................ 567
B. Weakness of Prevailing Theories (Including Incentive-Based Theory) ..................................................................................... 567

IV. Considering Progressive Property Theory.............................568

A. What Is Progressive Property Theory? .................................... 568
B. Why Is Progressive Property Theory Better Suited to Justify Graffiti Protection? .................................................................. 569

1. Graffiti Artists as Property Outlaws................................... 570

CONCLUSION: HOW WOULD PROTECTION BASED ON PROGRESSIVE PROPERTY THEORY WORK IN PRACTICE?.....................................................571

INTRODUCTION

To the extent that graffiti enjoys some degree of legal coverage under copyright law, this Comment argues that a social obligation theory of property explains and justifies any protection provided, and recourse granted, to artists. According to Merriam-Webster's Dictionary, the definition of graffiti is "usually unauthorized writing or drawing on a public surface[.]"¹ The term

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"graffiti" refers to "the technique of painting stylishly names and letters on various urban surfaces, such as . . . railway trains as well as walls."² The art of graffiti involves varying "subsets and styles[,]"³ and graffiti artists fall under the category of writers in the subculture.⁴ The term "street art" encompasses more elaborate forms of art, like murals.⁵ In some cases, "street art" describes legal works that are commissioned, and "graffiti art" describes illegal and unsanctioned artwork.⁶ However, the difference between these two terms is becoming more inconsequential as this subculture is gradually becoming more popularized and accepted.⁷ This Comment will use the terms "graffiti" and "street art" interchangeably and clarify when discussing illegal and unsanctioned artwork.

When it comes to illegal and unsanctioned graffiti art, protections under intellectual property (IP) law are questionable and not clearly defined.⁸ However, internationally, artists may receive protection for their artwork in IP's "negative space[.]"⁹ This "negative space" refers to "industries involving substantial creativity that are unregulated or only partially regulated by de jure IP law."¹⁰ The problem is that IP law can technically regulate works that fall within this category, but it does not.¹¹ Thus, a number of graffiti artists face minimal protection for their unsanctioned art.¹²

There have also been justifications for graffiti protection under copyright law; however, this Comment suggests a different framework. This Comment considers whether graffiti protection should be justified by a non-incentive-based theory of property rights. While the existing incentive-based theory

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justifies graffiti protection by arguing for "an incentive for authors to create and disseminate works of social value[,]"¹³ a non-incentive-based perspective, such as progressive property theory, would ground protection in social obligation and allow graffiti artists to utilize property more often to enhance human flourishing.¹⁴ For example, in the United Kingdom, artists are "entitled to the full scope of copyright entitlements, irrespective of the illegality of their work[,]" unlike artists in the United States.¹⁵ The United Kingdom finds a balance: artists can prevent copying and reproduction of their works, and the property owners retain the right to display and sell those works.¹⁶

First, this Comment will discuss graffiti and its protections under IP law, starting from an international standpoint. Then it will examine the rules in specific countries—the United Kingdom, France, Greece, and Germany. Second, this Comment will discuss prevailing theoretical justifications for copyright protections, mainly critiquing the incentive-based theory. Third, this Comment will argue that a progressive property theoretical framework better justifies legal protections for graffiti. The progressive property approach would contemplate the interests of both graffiti artists and the owner of the underlying medium on which the art appears—specifically, it would contemplate the contributions of each to the well-being of the community when determining legal protections. A combination of U.S. case law on graffiti art and Germany's inclusion of social obligation in its property laws could pave the way for more street art protections internationally. Progressive property theory forces us to rethink copyright law and possibly widen its protective measures. Finally, this Comment will attempt to illustrate how protection based on progressive property theory would work in practice.

This Comment will discuss both legal and illegal graffiti, and will address who has the right to do what with it between the property owner and the artist. However, this Comment will not discuss or make statements about any clear rules relating to illegal graffiti. Instead of presuming the owner can destroy the work, it should be determined whether there is any kind of dialogue or consideration given to the artist.

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I. BACKGROUND

A. Current Legal Status of Graffiti

In a matter of first impression, the U.S. District Court for the Eastern District of New York was tasked with "determin[ing] whether the work of an exterior aerosol artist—given its general ephemeral nature—[was] worthy of any protection under the law."¹⁷ 5Pointz, located in Queens, New York City, was the "repository of the largest collection of exterior aerosol art . . . in the United States, and had consequently become a significant tourist attraction[.]"¹⁸ On November 20, 2013, the owner of the warehouse buildings, Gerald Wolkoff, destroyed nearly all of the works by the plaintiffs (for future high-rise luxury condos to be built) before the district court's opinion was issued in the initial case, Cohen v. G&M Realty L.P. (Cohen I).¹⁹ Wolkoff's destruction resulted in the court's assessment for damages.²⁰ In February 2020, the U.S. Court of Appeals for the Second Circuit affirmed the district court's judgment in awarding the maximum statutory damages under the Visual Artists Rights Act of 1990 (VARA): a total of $6,750,000 for all forty-five works of art to plaintiffs-appellees—twenty-one 5Pointz artists.²¹ The court determined that the works of art, although temporary, achieved recognized stature to be protected under VARA, and the defendants' destruction was a willful violation of VARA.²² 5Pointz had approximately 10,650 works of art, and forty-five of those works had achieved recognized stature.²³ Damages for violations of VARA are usually governed by general copyright law, providing actual and statutory damages.²⁴ However, if a court finds a willful intent to violate VARA, it "may increase the award of statutory damages to a sum of not more than $150,000 per work[,]"²⁵ which was the case here. Under VARA, the artists were entitled to a ninety-day notice and opportunity to remove their works, but Wolkoff had...