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2 NYU J. Intell. Prop. & Ent. L. 295 (2012-2013)
Protecting Artistic Vandalism: Graffiti and Copyright Law

handle is hein.journals/nyuinpe2 and id is 301 raw text is: PROTECTING ARTISTIC VANDALISM: GRAFFITI AND COPYRIGHT LAW CELIA LERMAN* Does copyright law protect graffiti? Preserving graffiti art and protecting it against unauthorized reproductions are growing concerns in the art scene. This article argues that copyright law should cover graffiti works because copyright should be neutral towards works created by illegal means. Because copyright should only be concerned with protecting expression, material transgressions related to the physical embodiment of an artistic work should not exclude the work from copyright protection. This is true even under an incentive-based copyright system, such as the one established by the United States Copyright Act. Illegal graffiti works are creative acts that fit within the scope of promoting the progress of Science and Useful Arts, as stated in the United States Constitution. Moreover, protecting graffiti may incentivize graffiti artists to create more legal works. This article analyzes the challenges that artists face when enforcing their rights in their graffiti, both under the Copyright Act and the Visual Artists Rights Act (VARA). INTRODUCTION......................................................296 I. A RISING ARTISTIC MOVEMENT WHERE OWNERSHIP RAISES CONCERNS ....297 II. GRAFFITI AS A VISUAL WORK UNDER COPYRIGHT LAW.... ............307 III. How CAN WE PROTECT ILLEGAL EXPRESSION LIKE GRAFFITI UNDER COPYRIGHT?................................................. .....311 A. Identifying Illegal Graffiti............................ ......311 B. Illegality Is Not a Basis for Denying Copyright Protection.... .....316 C. Illegal Art Can Be Protected in an Incentive-Based Copyright System 321 IV. CHALLENGES TO THE ENFORCEMENT OF ARTISTS' RIGHTS IN THEIR GRAFFITI ....................................... .........325 A. Challenges in Enforcing Copyright. ..........................327 B. Challenges Under the Visual Artists Rights Act........330 *Visiting IP Scholar, Kernochan Center for Law, Media & the Arts, Columbia Law School. Intellectual Property Law Professor, Universidad Torcuato Di Tella (Buenos Aires, Argentina). I am thankful to Jane Ginsburg, June Besek, Morgan Friedman, Agustin Waisman, Kali Nicole Murray, Michelle Pham, Jonny Robson and the Graffitimundo team in Argentina, the JIPEL editorial team, Philippa Loengard, and the participants of the Current Issues in Copyright seminar at Columbia Law School for their useful comments. 295

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