Graffiti has transformed over the last several decades from a sign of urban blight to a sign of artistic expression. As a result of this shift, clothing designers and other players in fashion have begun to use images of “street art” as part of their lines. This leaves graffiti artists with no way of protecting their art, especially because of the illegal nature of graffiti. This note examines current sources of law that can be used to protect artists from this infringement. Artists have unsuccessfully argued under both moral rights and copyright theories. However, copyright and moral rights analyses do not address the nuanced issues that illegal art presents because of the way both areas of law have been interpreted by the courts. Moral rights have traditionally been thought of as preservationist in nature, and copyright has traditionally only covered legally made works of art. However, there is one avenue that can be used to protect this art, which is false designation of origin under the Lanham Act, the federal trademark statute. This note argues that the Lanham Act is a source of law that graffiti artists can utilize to protect their work.
Note on Using Trademark law to protect street art from fashion: There is no such thing as trademark “law.” The United States Copyright Act, like most laws in this area of the internet or at any store (it appears that you can get an answer if you Google it), contains a handful rather useless bits about who owns what and how long people need permission for their work. (1) Not all trademarks are created equal; some cannot be protected by patent protection because they’re already owned by others so many years ago when someone claimed them.