Should Graffiti Be Protectable?

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 (CPDA) 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...