Graffiti: Expression, Trademark, or Illegal ?

It could certainly be the case that the answer to the above question is "yes."

On the one hand, graffiti is an artist's expression memorialized on a building, roadway or some other public place.1 It meets the prima facie elements for copyrightability.2 There's certainly enough creativity under the "modicum" required by Feist Publications, Incorporated v. Rural Telephone Service Company.3 After all, graffiti is unique to each artist both in style, substance and location.4 The problem may be the fixation, as upon discovery, most graffiti is painted over or washed off with paint thinner by either the local authorities or by the property owner whose property was "defaced" by the work in question.5 But really, how is this different from a pencil drawing on a piece of paper? A person could erase it in the same way graffiti is removed. Arguably then, the copyright lasts as long as the work does (in this case...I don't feel like invoking a copyright term discussion). So the answer to the first part of my query is "yes, probably."

In the alternative, if I have not already persuaded you, graffiti could be a trademark. Actually, it probably couldn't be, but let's walk through it regardless.

A trademark is a mark that denotes the source or origin of a good or service.6 Because graffiti is not really a "good"7 and more a mark of a "service,"8 we'll have to go with graffiti as a service mark. What service? Why painting surfaces in a colorful and unique design of course! Some people would term this blight,9 others would call it art.10 To me it makes little difference for the purposes of our discussion. Blight versus art is a discussion of opinion and taste and I'm sure there are plenty of idiots who think Monet's haystacks and bridges are terrible paintings. Luckily, I'm not friends with any of them. For purposes of copyright and trademark, the court doesn't usually delve into valuation of the art itself, only the expression11 (but that leads me back to copyrights...let's stay focused).

The main problem with trademarking a piece (or work) of graffiti is the "use in commerce" requirement.12 Let's be honest, 99% of graffiti artists are not making any money by doing this and they're not really selling any services either. So the real answer to part two of my question is "no."

Ok, two down, one more to go. True, graffiti is probably illegal in most jurisdictions. I don't know, I'm not up on my local ordinances. Probably. This may or may not invalidate any attempt at a copyright13 and by inference possibly trademarking.14 So the ultimate answer to my question about life, the universe and everything (including graffiti) is yes, no, yes, and 42.15

1: See Graffiti, http://en.wikipedia.org/wiki/Graffiti (last visited Aug. 28, 2009).
2: 17 U.S.C. § 102 (2006) (requiring a copyrightable work to be "fixed in any tangible medium of expression").
3: Feist Publ'ns, Inc. Rural Telephone Serv. Co., 499 U.S. 430, 341 (1991).
4: Graffiti, supra note 1; see also Feist, 499 U.S. at 341; (discussing the amount of creativity required to acquire a copyright); Burrow Giles Lithography Co. v. Sarony, 111 U.S. 53, 58-60 (1884) (examining the level of creativity required for copyright and suggesting that even a minimal amount would be sufficient).
5: Graffiti, supra note 1.
6: 15 U.S.C. § 1127 (2006); 4 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 3:9 (2005).
7: 15 U.S.C. § 1127.
8: Id.
9: Graffiti, supra note 1.
10: Id.
11: Bleistein v. Donaldson Lithographic Co., 188 U.S. 239, 251 (1903) ("It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.").
12: 15 U.S.C. § 1127.
13: Cf. Mitchell Brothers Film Grp. v. Cinema Adult Theater, 604 F.2d 852, 854-55 (5th Cir. 1979) (providing copyright protection to a work deemed to contain "obscene" content while not addressing whether the actual nature of the work would affect the copyrightability).
14: See 15 U.S.C. § 1127 (providing that trademarks must relate to "all commerce which may lawfully be regulated by Congress.").
15: See DOUGLAS ADAMS, A HITCHHIKER'S GUIDE TO THE GALAXY (Harmony 2004) (1980).

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