Tagging someone’s property doesn’t actually make it yours

Growing up in New York City in the 1990s, I knew a lot of graffiti writers. But until recently, I never had heard of anyone who operates under the delusion that by scrawling a tag in spray paint on a wall that that person actually claims legal ownership of it.

Graffiti is vandalism, after all, and eventually walls are inevitably painted over, or covered up by stickers, posters or other graffiti. Whether it is a mailbox, subway tunnel, private building wall or garage door, the risk that a property’s rightful owner would clean or paint over your tag is, like the risk of arrest, inherent to the craft.

But some graffiti artists are now so fragile and entitled that they argue tagging someone else’s premises gives them legal power over how it is used. What’s even stranger is that these claims aren’t automatically being met with the dismissal they deserve.

Whatever the law allows, though, graffiti writers who sue anyone for using or destroying their work are ultimately damaging the future of their own art form.

To see why, you have to first know about two recent high-profile graffiti-related lawsuits in New York City. The first was a pyrrhic victory for graffiti when a group of spray can artists who had painted pieces on the famous 5Pointz building in Long Island City won a $6.7 million award in February. U.S. District Court Judge Frederic Block ruled that by whitewashing the walls of his own building – which he was soon tearing down anyway – owner Jerry Wolkoff had unfairly destroyed recognized works of art. He awarded $150,000, the maximum damage allowed under the Visual Artists Rights Act, for each of the works destroyed.

Wolkoff allowed graffiti to flourish on his building for more than two decades and, as he learned, that good deed could not go unpunished. Graffiti artists say they want legal walls, but when someone is generous enough to give them one, this is how they show their appreciation.

In January, Jason Williams, a Los Angeles-based artist whose tag is Revok, sent a cease-and-desist letter to clothing retailer H&M, complaining that the company had shot a commercial in front of a mural Williams had painted at a Brooklyn playground. H&M, Williams’ lawyer contended, used the work without his approval and the letter threatened legal action in the absence of “an amicable settlement.” In March, H&M filed suit asking the same federal district court in Brooklyn where the 5Pointz case was adjudicated to rule that they did not infringe on Williams’ copyright. In response, street artists and their supporters organized on social media to boycott H&M and the company quickly backed off, telling Huff Post that they are withdrawing the suit and working to reach an agreement with Williams. 

But the company’s initial reaction was understandable. Williams believes H&M does not have the right to film in a public playground without first coming to an agreement with him because he had illegally painted a mural on the wall. H&M’s production company asked the New York City Department of Parks and Recreation whether it needed to pay royalties for the mural. The department responded that the mural was illegal and that they had no idea who had painted it.

So Williams’ contention appears to be that any time he illegally tags a wall, merely checking with the wall’s rightful owner is inadequate. Instead, a film company must use its crystal ball to figure out his identity and track him down to offer him money.

“The impact of the suit may well echo far into the future,” notes the website Artsy about the 5Pointz case. “(The judgement) gives other graffiti artists hope that they could find success bringing cases under the statute.”

The impact will indeed echo, but not only in the way the graffiti community might hope. Here is one obvious downside for the art form that the selfish practitioners who sued Wolkoff appear not to realize or care about: If Wolkoff’s punishment for allowing graffiti on his building is that he loses his rights of ownership, what landlord will ever want to follow in his footsteps?

If graffiti artists can sue a private citizen for painting over their works, and they can sue a company for filming a commercial in a public park where they painted illegally, what’s next? Will they start suing city governments for painting over their illegal works in public parks? After all, if it’s unfair to graffiti writers for their recognized work to be buffed, and being the setting for a TV commercial is undoubtedly recognition, what’s to stop Williams from suing the parks department the next time they paint over a wall that they own? Again, a perverse incentive will be created, whereby the city – like private landlords under the 5Pointz ruling – must paint over graffiti as quickly as possible to avoid it becoming a “recognized work” and liable to legal expropriation.

Will graffiti writers also sue independent filmmakers for shooting low-budget features on location, just because they had the misfortune to film in front of a vandal’s painting?

It’s easy to side with scrappy artists against unsympathetic defendants like rich real estate developers and global corporations, rather than a film student or a struggling bodega owner. But the law makes no such distinction. If artists can appropriate a rich person’s property by tagging it, they can do so to a poor person just as easily.

The irony, apparently lost on many aerosol artists, is that they are constantly painting over each other’s work. “Each of the artists who went up on the walls painted over somebody else’s and they didn’t sue the guy who painted over them,” notes Wolkoff. “If I had kept it up for another two years, the ones that sued me would have been gone over and not been there anymore anyway.” As Stephen K. Schuster, a native New York City photographer who has taken photos of graffiti for over a decade, puts it, “To write graffiti is to accept that it is impermanent.”

So, here’s a suggestion for artists who want to control the disposition of their work: Don’t put your paintings on other people’s walls.