Note on Using Trademark law to protect street art from fashion

Three street artists known as Revok, Reyes and Steel brought an action against Roberto Cavalli for appropriating this mural a clothing line
Three street artists known as Revok, Reyes and Steel brought an action against Roberto Cavalli for appropriating this mural a clothing line
Maribeth Smith has written an interesting student note in the Brooklyn Law Review which argues that trademark protection may be a good way to protect street artists from having their works appropriated by fashion designers:

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.

Maribeth Smith, Tagging the Lanham Act:  Protecting Graffiti Art from Willful Infringement, 81 Brooklyn Law Review (2016).

Student Comment: “The Law of Banksy: Who Owns Street Art?”

Banksy’s ‘mobile lovers’. It sparked a dispute between the Boys’ Club where it was painted, and the Bristol City Council which sought to seize it.

The artist Banksy creates valuable works of art, but he places them without permission, and this often raises property disputes. Peter Salib, a JD candidate at the University of Chicago has posted a draft of “The Law of Banksy: Who Owns Street Art?” It is an interesting examination of the problem, though comparative lawyers and those outside the United States may share my frustration that though the author uses as an example the dispute between a Boys’ Club in Bristol, and the Bristol City Council, and an artist who works frequently in the United Kingdom and all over the world, insists on focusing almost exclusively on American law.

From the abstract:

Street Art — generally, art that is produced on private property not owned by the artist and without permission — has entered the mainstream. Works by such artists as Banksy, Jean-Michel Basquiat, and Shepard Fairey now sell at the world’s most prestigious auction houses, fetching prices in the millions. Strangely, however, the law governing street art ownership is entirely undeveloped. The circumstances of street art’s creation — often involving artists’ clandestine application of their work to the sides of buildings owned by others — render traditional legal paradigms governing ownership intractable. If Banksy paints a valuable mural on the side of my house, who owns it? Me? Banksy? Someone else? American law is currently ill-equipped to answer the question.

This article rigorously investigates the problem of street art ownership. It accounts for the unusual circumstances of street art creation and distribution. It then considers the possible legal regimes for governing street art ownership and comes to a surprising recommendation.

  1. Peter N. Salib, The Law of Banksy: Who Owns Street Art?, SSRN Scholarly Paper ID 2711789 (Social Science Research Network), Jan. 6, 2016.
  2. Owner of Banksy Mobile Lovers youth club received death threats, The Independent (Aug. 27, 2014),

Smith on Street Art and low Intellectual Property

Street art in Oslo
Street art in Oslo

Cathay yvette Nikka Smith, of  the University of Denver Sturm College of Law has posted on SSRN, Street Art: An Analysis Under U.S. Intellectual Property Law and Intellectual Property’s ‘Negative Space’ Theory, 259 DePaul J. Art, Tech., & Intel. Prop. (2014). From the Abstract: Continue reading “Smith on Street Art and low Intellectual Property”

Murray Reviews HBO’s ‘Banksy Does New York’

"The Street is in Play", Banksy, Chinatown, Oct. 2013.
“The Street is in Play”, Banksy, Chinatown, Oct. 2013.

Noel Murray previews tonight’s HBO documentary on Banksy’s New York ‘residence’. One reason for the enduring appeal of Banksy, is the artist gets people thinking about art:

Banksy posted pictures of the finished works, but wouldn’t say where they were located, which meant that Banksy fans had to hunt around the city to find them—all while hoping that the pieces hadn’t been removed or painted over before they could be discovered. Over the course of the month, Banksy stirred up controversy with the political content of some of the work, and provoked the usual brouhaha over whether street art is any different from everyday vandalism. But Banksy also got the citizens of New York talking nearly every day about art and social issues, and he had people paying more attention to their surroundings, looking for hidden Banksys. He kept folks on their toes. . . .

That’s ultimately what makes Banksy Does New York such a lively and engaging film (even if it lacks the endearing puckishness of Exit Through The Gift Shop). Moukarbel ignores a lot of the outcry in New York about the appropriateness—or cleverness—of some of Banksy’s big social statements, like his comments about 9/11 and the Freedom Tower. And Banksy Does New York doesn’t give more than a passing voice to Banky’s critics and skeptics. (If anything, it’s more harsh to the New York art world for largely ignoring the residency.) But the film does a fine job of getting at the tension that each day’s new piece inspired. In the neighborhoods where Banksy struck, some locals fought to preserve the work, some looked to profit from it, and some saw the whole event as a nuisance. Meanwhile, New Yorkers flocked to the new exhibits, and balked whenever anyone tried to restrict their access or mar the art. Intentionally or not, Banksy and Moukarbel raise the question of who these spontaneous acts of creativity belong to, and whether they’re ever really “complete.”

The documentary airs Nov. 17th on HBO.

Should Street Art Stay where it was Made?

New York and Detroit are both encountering the difficulty which arises when street art achieves recognition.

In Detroit, a group removed a Banksy work from near an abandoned Packard plant. The 555 Non-profit gallery which cut away the wall is now engaged in a legal dispute with the owner of the Packard site over the mural. The dispute brings to mind so many interesting questions. Banksy may have intend his mural to be temporary, and only seen for a limited time in the context of the decaying auto plant. Did the gallery strip the mural of its context by removing it? How is that removal much different than the stripping of pre-Columbian stelae from central and south America? The techniques of sawing are probably similar, and we are left with a decontextualized panel in a different space, left to imagine what the work would have looked like in its original, though perhaps threatened, context.

5 Pointz in Queens

In Queens, a similar difficulty may be emerging. The owner of this warehouse space in Long Island City has announced his intention to develop the warehouse into a residential project, supermarket, and space for artists. As Marlon Bishop reports for WNYC “Since 1993, the former warehouse space in Long Island City has served as an informal training ground and gallery for street artists from around the city. The space is regularly visited by graffiti and hip-hop fans from around the world, earning it a reputation as a street art mecca.”

But now that space is being re-purposed by the owner of the building. The warehouse itself may be in need of serious repair anyway, as an external staircase collapsed in 2009. As the owner of the building, Jerry Wolkoff would ordinarily be free to do what he wishes with his building. Yet the artists are upset that their creative space is disappearing and may seek to have the building declared a historical landmark. Will the re-purposed developoment continue to serve the same function of bringing together artists? Surely not. And part of the excitement of the street art scene was its newness and how it emerged as a new art form breaking free of conventions. Yet wider appreciation for street art, and the commodification of these works, are slowly imposing the conventions anyway.

  1. Matthew Dolan, If You Take Street Art Off the Street, Is It Still Art?,, March 9, 2011, (last visited Mar 9, 2011).
  2. Marlon Bishop, Queens Graffiti Mecca Faces Redevelopment, WNYC, , (last visited Mar 9, 2011).
Video from Detroit after the break:

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