A Lawyer’s Random Musings – Graffiti Art

A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.

21st Century Bison Herd – @Anon

Question:  I’m a graffiti artist. Can I get done (arrested and charged) for painting on, for example, an old disused bridge.

Answer:  Yes.  Although you can’t be convicted if you didn’t do anything illegal.  How’s that for stating the obvious?  When is it illegal to paint a bridge that doesn’t belong to you?

Social Issues

All legal issues aside, there is a lot of debate about graffiti and the benefits and detriments to society.  I’m not going to take sides, or try to capture all the arguments & counterarguments.  To greatly oversimplify, the artists want freedom of expression, the property owners want to not be forced to allow any two-year old who can point a spray can to use their property as a scribble-board.  If the property owners happen to like graffiti art, and want the mural, or to encourage street art, or whatever, then great.  No conflict.

Unless… the building owner allows an artist to paint a really cool mural and some other “artist” (no, sorry, not artist, vandal, in my personal opinion) comes along and scribbles all over it with spray paint.   That happened to a mural that I, personally, like a lot — bison on the side of a small cinder block retail building in Denver.  That’s not so cool.  Not my building, not my mural, but I’m still upset about that, and hope whoever did the scribble job gets caught and punished.  The issues go beyond private property rights to what people have to look at when they’re out and about.  Not everything that involves pointing a can of spray paint at an inanimate object should be embraced as artistic expression or socially valuable.  Any unsupervised two-year-old can scribble on a wall, anyone who has ever done any babysitting knows that.  So there is a balance to be achieved, between creating space for art including outsider art, versus not having every inch of every building or flat surface we see covered with whatever someone felt like scribbling this time.

First Amendment Freedom of Expression

The First Amendment of the U.S. Constitution, which protects freedom of expression, has limits.  There is a large number of Supreme Court cases which establish various limits on freedom of expression (see https://en.wikipedia.org/wiki/List_of_ United _States_Supreme_Court _cases_involving_the_First_Amendment).  Artistic expression is, in general, a more protected form of speech than, for example, commercial speech.  Even so, graffiti artists (just like the rest of us artists) are not free to do absolutely anything we want under the protection of the First Amendment.  There are other people out there in the universe, their rights matter, too.

Black, White, and Green Paint – @Anon

Other People’s Property and Getting Permission (or not)

If you have permission to paint the bridge, given to you by someone who is authorized to give you permission, such as the owner of the bridge, then no worries, as long as you stay within the scope of the permission.  If you agreed you were going to paint endangered sea creatures, the owner might have issues with you doing stars ‘n’ bars on a big middle finger instead.  That might be outside the scope of the permission you have to paint on the building.  A famous example of an artist who overstepped the bounds of his patron’s permission to do a mural on the patron’s wall is “Man at the Crossroads.”  Diego Rivera painted a mural which included Lenin.  Rockefeller, his patron, asked that Rivera remove the image of Lenin, and Rivera refused to comply.  As soon as the mural was complete, Rockefeller destroyed it.

VARA and Moral Rights

There is now law addressing destruction of art, VARA, the Visual Artists Rights Act.  VARA provides for “moral rights” which provide limited protection against reputational damage to artists if certain types of artworks are damaged or destroyed.  Mainly VARA provides artists with the ability to have their names taken off of art that has been mutilated to the extent that allowing people to view the art in its damaged state could adversely affect the artists’s reputation.

More About Other People’s Property – Abandoned Property, and Finding Out

Who Owns It

Then there’s the question of doing stuff to other people’s property without permission.  Someone owns the bridge.  Even if it’s legally abandoned, there will be some record of an abandonment proceeding, and title will transfer to someone, probably a government entity.  You can find out who holds the title to any piece of real property in the U.S. by going to the courthouse in the jurisdiction where the property is located, and researching the property records.  Because historically there was so much chicanery in real estate dealings, deeds to real estate must be filed at the courthouse,  are public records.  Researching deeds to bridges, so you know whose property rights you’re probably violating before you point the spray can at the bridge probably sounds like a tedious activity.  It is.

Public Parking – @Anon

Criminal Law

You want to know if you can get arrested.  You’re asking about criminal law, which comes with criminal penalties, like jail, or fines.  The answer is yes.

Vandalism and Criminal Property Damage Laws Generally

All of the states have criminal property damage statues of one kind or another.  Criminal Mischief and Criminal Tampering laws generally involve intent to damage property, and actual damage to property.  These laws tend to be sorted into degrees, 1st Degree Criminal Mischief; 2nd Degree Criminal Mischief, etc., with the degree level tied to the dollar value of the damage.  The names of the laws vary somewhat.  For example, in North Carolina, it’s Willful and Wanton Injury to Property, in Texas, it’s Vandalism, in Virginia, Injury to Property.  In Colorado, my home state, you can go to jail for between 6 months and 24 years, and pay between $750 and $1 million in fines for violating Colorado Revised Statutes §18-4-501 (criminal mischief), depending on the dollar amount of the damage that was done.  Colorado’s law makes a distinction between “knowingly” (you have to knowingly do the act) vs. “intentionally” damaging property (you don’t have to intend to do damage when you did the act).  The exact language of these statutes can matter, and they’re not all written the same from state to state.

Related Posts  A Lawyer’s Random Musings - Federal Facilities
Girl Party – @Anon

Don’t Mess With Railroads

Suppose it’s a railroad bridge, and you decide tag a railroad sign.  There are various laws specifically addressing railroad trespass and vandalism.  For example, Iowa’s criminal code provides:

“1.  A person commits railroad vandalism when the person does any of the following:
…e.  Without the consent of the railway corporation, takes, removes, defaces, alters, or obscures any of the following:
(1)  A railroad signal.
(2)  A train control system.
(3)  A train dispatching system.
(4)  A warning signal.
(5)  A highway-railroad grade crossing signal or gate.
(6)  A railroad sign, placard, or marker.

  1. Without the consent of the railway corporation, removes parts or appurtenances from, damages, impairs, disables, interferes with the operation of, or renders inoperable any of the following:
    (1)  A railroad signal.
    (2)  A train control system.
    (3)  A train dispatching system.
    (4)  A warning signal.
    (5)  A highway-railroad grade crossing signal or gate.
    (6)  A railroad sign, placard, or marker.

    g.  Without the consent of the railway corporation, taking, removing, disabling, tampering, changing, or altering a part or component of any operating mechanism or safety device of any train or train component.

    h.  Without the consent of the railway corporation, takes, removes, tampers, changes, alters, or interferes with any of the following:
    (1)  A railroad roadbed.
    (2)  A railroad rail.
    (3)  A railroad tie.
    (4)  A railroad frog.
    (5)  A railroad sleeper.
    (6)  A railroad switch.
    (7)  A railroad viaduct.
    (8)  A railroad bridge.
    (9)  A railroad trestle.
    (10)  A railroad culvert.
    (11)  A railroad embankment.
    (12)  Any other structure or appliance which pertains or is appurtenant to a railroad.

” 2.
a.  A person commits railroad vandalism in the first degree if the person intentionally commits railroad vandalism which results in the death of any person. Railroad vandalism in the first degree is a class “B” felony. However, notwithstanding section 902.9, subsection 1, paragraph “b”, the maximum sentence for a person convicted under this section shall be a period of confinement of not more than fifty years…”

The statute continues on to discuss 2nd degree, 3rd degree, etc. offenses.  It might be good to know that if someone gets killed because you defaced a railroad sign, or you dropped the wrong thing in the wrong place on the railroad track, in Iowa, you could go to jail for up to 50 years.

Trespassing

Then there’s trespassing laws, generally.  You decide to go into an area where “No Trespassing” signs are posted, or maybe there weren’t signs but nobody was looking so you sneaked in through a hole in the fence.  Most jurisdictions have trespass laws.  In Kansas, for example, if you get caught violating their criminal trespass law, you can end up in prison for “not less than 48 consecutive hours…which shall be served either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.”

Laws Specifically Addressing Graffiti / Abandoned Buildings

New York City and State have laws that specifically address grafitti.  New York City’s Section 10-117 (b) makes it illegal to “carry an aerosol spray paint can, [or] broad tipped indelible marker or etching acid into any public building or other public facility with the intent to violate the.. [anti-graffiti law].”  You don’t even have to take the lid off the can of spray paint to get in trouble in New York City.

Under New York State law, if you intentionally destroy an abandoned building, you can be guilty of criminal mischief.

Sale of Spray Paint

States have attempted to control vandalism by making businesses that sell spray paint responsible for who they sell it to.  Businesses that violate laws banning or restricting sales of spray paint can get fined.  Often it is illegal to sell spray paint to minors, and some jurisdictions require that stores selling spray paint lock it up.

Wall With Layers of Paint – @Anon

Question:  Can I sue someone for using MY graffiti art in theirs?

Answer:  I think you’re asking if you have or can get copyright or trademark protection for your graffiti art designs, and whether you can sue other people for copyright or trademark infringement.  The answer is yes.

For the purposes of copyright or trademark protection, your graffiti art is no different than any other visual art.  So yes, if your work is infringed, you can sue infringers.  A full discussion of copyright law is not possible in this one article, so I will refer you to www.copyright.gov, which has a very easy to understand Frequently Asked Questions page, and a lot of other useful information as well.  Trademark law, as well, is a very large area of law, so I won’t go into a lot of detail.  I think of a trademark as similar to an artist’s signature.  The trademark tells us who made the product, or art, or whatever.  You don’t have to register either copyrighted work (which is copyrighted from the moment it is “fixed in a tangible medium”) or trademarks (sometimes trademark can happen with usage, and even if you register a trademark, if you don’t use your trademark and enforce infringement, you can lose it).  Copyright law gives the copyright owner the exclusive right to public display and the exclusive right to make derivative works (works that include your art in it, for example).

If you actually intend to sue other graffiti artists for infringement, in either area, I highly recommend registering your work.  With something like graffiti, which can be wiped clean or painted over in a moment, there can be evidentiary issues.

Registration matters because, if you go to court, you have to show evidence that you, and not someone else, owns the copyright or trademark.  I’ll mainly talk about copyright, but some (definitely not all) of the evidence issues can apply to trademark as well.  If you don’t register your work, and something happened to make it vanish, or everyone is copying it all over the place and nobody really knows where the original came from (it’s like a meme of unknown origin), it can be very difficult to show that you, and not someone else, created the original artwork that everyone is copying.

When you register your work with the Copyright Office, you have to give them some information about the artwork, including the date you created it, and the date it was first published (if it was published).  Registration creates a legal presumption that whatever you wrote in your copyright registration packages is the truth; it’s “prima facie” (on it’s face) evidence of copyright ownership.  Of course, if you don’t file, and someone else files a (perhaps fraudulent) registration saying it was theirs first, then you have the burden of proof to show that they were lying and it’s really your copyright.  People can get fined up to $2,500 for lying in a copyright registration package.  (See Section 5 of the Copyright Act).

As a practical matter, it can be a little bit difficult to get much out of suing graffiti artists who are “outsider” artists.  They sometimes have no permanent place of residency, which makes doing things like serving process (providing the person you’re suing with notice of the lawsuit), challenging.  If you sue and win monetary damages, you could have a tough time collecting from someone who has little or nothing in the way of assets or income.

There are a variety of remedies available to victims of copyright infringement, they vary from injunctive relief (court orders telling infringers to stop infringing) to statutory damages, attorney’s fees, criminal penalties (fines), to actual damages.  Infringing works that are imported or exported can get impounded and/or destroyed – along with any equipment used to make the infringing work.

Free Expression – @Anon

For something like graffiti art, if it has no commercial value, then there won’t be any actual damages for copyright infringement.  You will have to try to get statutory damages, if you want to get any money, and you can’t get statutory damages if you don’t register your work.  You can register after you discover the infringement, but the deadline for that is very short.  There are various deadlines depending on the situation, but in some situations you only have one month after discovering infringement to file for copyright registration.

The answer is yes, you can sue for infringement, but you will need to educate yourself on how copyright and/or trademark law work, to make sure you do what you need to do to protect your rights to statutory damages (under copyright law), or do the other things you need to do to protect a trademark, and you will need to think through whether, assuming you win damages, you stand a reasonably good chance of being able to collect any money from the person you sued.

If you do plan to sue other graffiti artists, I recommend that you find a lawyer to help you with the lawsuit.  A lawsuit can drag in all kinds of law other than only copyright, or only trademark.  You will probably need a lawyer who is aware of all the facts of your case to help you navigate that.

 

Sources and additional reading: 

 https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases_involving_the_First_Amendment

 https://en.wikipedia.org/wiki/Man_at_the_Crossroads

 http://www.law.harvard.edu/faculty/martin/art_law/esworthy.htm

 https://www.criminaldefenselawyer.com/resources/criminal-defense/misdemeanor-offense/caught-spraying-graffiti-what-criminal-conse

 https://www.criminalpropertydamage.com/alabama

  https://statelaws.findlaw.com/colorado-law/colorado-criminal-mischief-laws.html

 https://rosenblumlawfirm.com/consequences-of-stealing-traffic-signs/

 https://law.justia.com/codes/iowa/2015/title-xvi/subtitle-1/chapter-716/section-716.10/

 https://www.copleyroth.com/criminal-defense/what-is-criminal-trespass/

 http://www.nyc.gov/html/nograffiti/html/legislation.html

 https://smallbusiness.chron.com/spray-paint-sales-laws-72890.html

 

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DISCLAIMER

Disclaimer: This column is intended to provide entertainment, and basic general information about the law. It is not legal advice. No attorney-client relationship exists or is created between the author and the reader or any other parties. This information is not a substitute for legal advice from your attorney. If you think you may need legal advice or if you are engaged in or contemplating litigation, you are encouraged to seek the services of a licensed attorney in your jurisdiction.

The author makes no attempt to protect from public disclosure any attorney-client privileged or other information provided to her. Your attorney may have a more difficult time representing you effectively if you have disclosed attorney-client privileged information, so please don’t be stupid and send to the author information that you don’t want your adversaries to know. All of the ideas, opinions, errors, random thoughts, digressions and everything else she wrote are her own, and are not to be blamed on anyone other than the author.

Copyright Cheryl Emerson Adams, all rights reserved.

For more free basic information on U.S. intellectual property law, see the following websites:
Copyright: Copyright Gov
Patent and Trademark: USPTO Gov

Cheryl Adams

Cheryl Adams

Artist at Cheryl Adams
Cheryl Adams, J.D. Law, is licensed to practice law in Maryland, U.S.A.

She attempts to provide entertainment and basic general information about U.S. law.Enjoy.

To learn more about her: Getting To Know Cheryl Adams
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