How does intellectual property protection work for graffiti artists in Texas?

Learn what intellectual property rights you have as a sanctioned graffiti artist whose work appeared in an ad or a motion picture.

Maybe rather than using paints, colored pencils, or charcoal for your art, you use aerosol and graffiti. Some graffiti artists are vandals, illegally tagging the sides of buildings and businesses in Texas, but others receive commissions to create great works of art. No matter how the art winds up on a building, does it have any legal protection in the eyes of the law?

The issue

At the root of this legal discussion is the fact that graffiti art sometimes appears in commercials and movies, and on TV shows. When that happens, the artist may have the legal option of suing the person or company for compensation or damages for failing to acknowledge proper ownership of the graffiti. The property owner of the "tagged" building that appeared in a film or photograph may have given the individual or company permission, but that permission may not necessarily extend to showing and using the aerosol art, even if that art is an act of vandalism.

Stepping outside of videographers and photographers, another intellectual property issue with graffiti is whether property owners have a right to cover up or destroy aerosol art on their premises. Business owners and graffiti artists should familiarize themselves with the latest legal developments.

Current copyright law

Right now, copyright law states that artwork is protected as long as it is "original work of authorship fixed in any tangible medium of expression." Over the years, this protection has extended from traditional art to include unsanctioned street art. That said, where conflict enters the equation is when graffiti art is made illegally. Not too many court cases deal with intellectual property law in regards to unsanctioned street art, mainly because of the level of anonymity often involved in unsanctioned street art. Such cases usually are not settled in court. There is also the expense involved with defending these cases.

As for destroying or covering up graffiti, aerosol artists split ownership rights with the owner of the "tagged" property. This is because the property owner has ownership over the art's tangible medium, creating a conflict between property law and copyright law. This applies even if the artwork is legal rather than an act of vandalism.

Here, it is best to bring up the Visual Artists Rights Act. VARA was enacted in 1990 in an effort to safeguard visual artists' moral rights, such as art's integrity and spirit as well as the artist's personality. This act extends to preventing the destruction of graffiti art. As long as the property owner makes an attempt in good faith to find the graffiti artist to inform her or him of the intent to destroy the work, the property owner can do so if the artist does not come forward to pay for the removal of the work within 90 days.

Are you a Texas graffiti artist who creates legal aerosol art? Learn about your intellectual property rights by talking with a legal professional.