Washington Journal of Law, Technology & Arts


Amy Wang


Common adornments on the sides of freight trains, highway underpasses, and dark alleyways, aerosol paint designs now also boast recent appearances on high-fashion runways, in Top 40 music videos, and even at sophisticated art auctions. Graffiti, by any other name, is still generally associated with gang activity. However, the acceptance of street art by pop culture has legitimized spray painting as another expression of modern art and aerosol artists have proven they deserve recognition. Nonetheless, while intellectual property law extends protection to benefit other artists, its application is limited as a recourse for graffiti artists. Why? Because the irony of protecting vandalism has not escaped the courts. This Article explores the strategies used by an artist’s counsel to protect his or her client’s work from alleged infringers. After a brief overview of general copyright protections, the Article will focus on the potential claims an artist can assert under the Visual Artists Rights Act of 1990. Specifically, it will examine the case law established by a U.S. District Court in Cohen v. G&M Realty L.P., 988 F. Supp. 2d 212 (E.D.N.Y. 2013), and discuss both an artist’s possible claims for protection under VARA and the possible defenses. This Article will highlight key issues that remain unanswered and summarize recommendations for practitioners whose clients are on either side of these issues.

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