Copyright trivia #3: Can “illegal” graffiti be protected under copyright?

Can illegal graffiti be protected under copyright?

Imagine you are a graffiti artist making an intervention (i.e. spray painting) in protest of the opening of a luxury fashion brand’s new retail location, and then the fashion house decides to take a picture of your intervention and print t-shirts of it to be sold under a hefty price tag, just to get back at you. Could you claim copyright infringement for the unauthorized reproduction of your art on those t-shirts? In other words, can illegal graffiti be protected under copyright? The short answer is that in Canada, it is.

While the act of “vandalizing” public or someone else’s property is punishable by law, the work created is protected under copyright, and the author can profit from the reproduction of said work of art.

As Tara Parker from The Lawyer’s Daily mentions:

Since the Copyright Act does not require that the work must be created “lawfully,” graffiti is capable of copyright protection, even if it is created from an illegal act of vandalism, so long as it meets the originality requirement (a graffiti artist’s short “tag,” signature or catchphrase may fall short of this requirement) and is sufficiently fixed in some permanent way (such as a mural painted on a public subway platform).

For a more nuanced explanation –including examples of lawsuits– at the intersection of illegal graffiti and copyright, you should check Parker’s article on it here.

Copyright touches everything around us – and right now the government is running a consultation to decide the future of Copyright in Canada. Make sure to learn more and make your voice heard at letstalkcopyright.ca 

Special thanks to folks at CIPPIC for pointing me to this interesting nugget of copyright trivia.