There was a time when graffiti was perceived to be a scourge, a public nuisance made by outlaws who sprayed their work on subway cars then slipped into the shadows, occasionally pursued by the police.
But these days, graffiti is having a renaissance and is used by fashion labels and major corporations in their ad campaigns. Rebranded as “aerosol art,” it has now become what it rarely was before: a marketable commodity.
The law, however, is struggling to catch up with the change in taste and culture, especially when it comes to the issue of when graffiti — an ephemeral form of art — deserves the safeguards of a copyright. This month a federal judge in California will entertain exactly that question as he hears oral arguments in a copyright lawsuit that could determine if graffiti wins new protections, or if companies can use it for commercial purposes without having to compensate the artists who create it.
The lawsuit, Falkner v. General Motors Company, was filed in January by Adrian Falkner, a Swiss graffiti artist better known as Smash 137, who was commissioned four years ago by the businessman Dan Gilbert to paint a mural on the outdoor elevator shed of a 10-story parking garage he owns in Detroit. The garage, called the Z because of its zigzag shape, was designed as a both to place to park your car and as a kind of public art gallery. Two dozen other graffiti artists adorned its walls with their creations, though Mr. Falkner’s piece had a privileged position on the top floor of the structure, surrounded by views of the city’s downtown skyline.
