United States: Is Graffiti Ineligible for Copyright Protection Just Because the Act of Tagging is Illegal?

Last Updated: May 18 2016
Article by Nicholas M. O'Donnell

After reports of a settlement proved premature, designer Moschino S.p.A. and its creative director Jeremy Scott have moved for summary judgment on the copyright claims filed last year by street artist Joseph Tierney, better known as "Rime." The motion raises a number of arguments, but the most significant is the contention that Tierney's work, as graffiti, is ineligible for copyright protection in the first instance. The view here is that defendants are mistaken about the eligibility question. And even if defendants can convince the court that they are right about the legal question of the availability of copyright for street art or graffiti, Tierney's factual rebuttal on the question of whether had permission to create the art that was used in Moschino's clothing designs makes it hard to imagine that they could convince the court that there are no material facts in dispute—the applicable standard for a motion for summary judgment. It will be very interesting too to see how the court grapples with questions about whether characters and symbols can be copyright management information (CMI) under the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 1202). 


Tierney sued Moschino and Scott last year for a variety of copyright and trademark claims based on the alleged use of Rime's works in certain fashion lines. Tierney alleged in his Complaint both that Moschino misappropriated his "Vandal Eyes" images themselves in the fashion line featured in Moschino's February 2015 runway show in Milan (shown above as set forth in the Complaint). Tierney also alleged that Moschino removed the identifying marks and reinserted them elsewhere, which he described as a manipulation of CMI in violation of the DMCA.

In January, the District Court denied the defendants' motion to dismiss. Defendants had argued that: (1) as an artist, Scott's designs were themselves entitled to First Amendment protection; (2) fashion is a matter of public interest and that the case was really a SLAPP suit—strategic lawsuits against public participation—that should be dismissed under relevant California law; (3) the copyright infringement claim should fail against Scott because Tierney has not provided anything that Scott was responsible for actual copying of the mural onto Moschino's apparel; and (4) the CMI theory was misplaced, and was intended to apply to digital information, not physical attribution.

Having failed to have the case dismissed under the standard in which all facts alleged in the Complaint are assumed to be true, defendants moved for summary judgment, arguing that no material facts are in dispute under the applicable legal standard. What is that standard? The basic theory of the defendants' motion is that insofar as copyright exists to promote creative expression, the commission of a crime is not something that the Copyright Act was intended to incent ("Tierney's graffiti is the product of illegal trespass and vandalism and, therefore, does not enjoy the privilege of federal copyright protection"). In fairness to defendants, there is strikingly little legal authority either way. Defendants attribute this to the criminal nature of street art, and posit (understandably) that potential plaintiffs will often be loath to reveal themselves lest they face persecution.

Defendants invoke the infamous Black Dahlia murder case as a rhetorical tool:

The Black Dahlia murder continues to stir the public imagination and, in this case, provides a useful illustration of the most essential thing Plaintiff is lacking: a valid copyright. The Black Dahlia's killer was, no doubt, a felon. But was he also a valuable copyright holder as a result of his illegal activities? Plaintiff Tierney's theory of this case necessarily concludes so, and, in the process, he reveals the manifest untenability of his claims.

The Black Dahlia's killer, of course, famously hacked up the bodies of his victims in a particularly original and artistic way. So when photographs of the killer's criminal handiwork were distributed by police and media, could the Black Dahlia's killer sue them for copyright infringement, claiming that the photographs unlawfully reproduced his copyrighted work—his fixation of an original series of markings into the tangible medium of a victim's body—without authorization or payment to him? In a word: no.

The danger in rhetorical questions is that the obvious is not as obvious as the questioner supposes. Reproduction of photographs involved in a newsworthy crime is a completely different (fair use) copyright analysis than whether graffiti is entitled to copyright protection. Is it? In a word: yes. The other cited example of obscenity is not terribly persuasive, though the defendants may have an argument—at trial—about the equitable defense of unclean hands if they can prove an imbalance in the conduct of the parties. That is hardly summary judgment stuff, however.

Defendants also somewhat understate the scope of existing caselaw. Their motion suggestions that only one court has considered "question of copyright protection for illegal graffiti" and that that court "strongly implied that the graffiti placed on a building without permission of a property owner would not be entitled to copyright protection. See Villa v. Pearson Education, Inc., No 03-C3717, 2003 WL 22922178, *2-3 (N.D. Ill. Dec. 9, 2003) (whether a mural "is not protected copyright . . . because it is illegal graffiti . . . turns on questions of fact," i.e., "the legality of the circumstances under which the mural was created").

That is a long way from implying that it is not eligible, and it is also not the only court to grapple with it. Among others: the Ninth Circuit in Seltzer v. Green Day found the band's use in a concert video of a street art image to be fair use. But it can only be fair use if it is copyrighted in the first place. And the litigation in New York continues over the famous 5Pointz graffiti Mecca, which could not if the underlying art were completely ineligible for copyright protection.  And the decision last year under VARA on the Prado Dam mural also implicitly assumed that copyright protection was available.  Indeed, defendants doth protest too much: "regardless of how much the literati and cognoscenti may romanticize graffiti, it is not entitled to copyright protection if it constitutes vandalism and trespass." #makecopyrightgreatagain, perhaps.

Lastly, Tierney himself filed evidence of permission to create the art in question, making it almost inconceivable that the court would rule at this stage that (1) graffiti cannot be copyrighted if it were not created with the property owner's permission, and (2) there are no disputes of fact about whether it there was such permission—because Tierney has created just such a dispute of fact. Defendants do plausibly challenge the ownership of the copyright of some of the elements involved, but there too it seems too soon to resolve any disputes of fact.

The CMI dispute remains a very interesting one, and far more unsettled than the basic eligibility question. Tierney alleges that an asterisk-like symbol is his signifier, and that the removal of it is the removal of CMI in violation of the DMCA. Against this, defendants argue, "The Seventh Letter symbol is not the title of the work, does not provide identifying information about the copyright owner or author of the work (unless Tierney admits that he is not the copyright owner) and is not otherwise any of the forms of copyright-related information dictated in 17 U.S.C. § 1202(c)." How the court rules on the breadth of what can be CMI will be very important for other visual arts cases, not just street art.

But the issues have been joined, and so it will be momentous either way if the court elects to answer the questions head on. Stay tuned for more developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Nicholas M. O'Donnell
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.