Graffiti Art and Related Legal Issues in Washington

By: Yixin Bao

Graffiti is a type of visual communication that is written or painted on a kind of surface. This usually happens without permission from the surface’s property owner, with the resulting work often in public view. Some understand graffiti as antisocial behavior which is used to gain public attention, especially when graffiti is created by a member of a street gang. Others, however, treat graffiti as a type of expression and an art form.

Starting in the 1960s, graffiti became a popular form of art in the United States. In New York, young people started to use spray paint to leave their signatures on public spaces, mostly on city walls and subway cars. For example, artists like TAKI 183, became famous for his frequent illegal tagging and was eventually known to be one of the “forefathers” of graffiti. While TAKI 183, whose real name is Demetrius, never considered himself an artist, he left his name and street number on hundreds of surfaces in New York City, making him a part of the history of American graffiti. Demetrius said: “I think a lot of what the graffiti movement spawned, early on, was just vandalism and defacement. But later on, real artists started doing it, and it did become a true art form.” As the art form grew, graffiti became more than lettering. Accompanying the text, abstract and complex compositions were incorporated, with additional color and lines. Such change also brought commercial success for these artists. 

Some graffiti artworks might be qualified to be protected as a visual work under copyright law. Copyright is a form of intellectual property that protects original works of authorship. The work must be original and fixed in a tangible medium of expression. The fundamental exclusive rights that a copyright owner has are the right to reproduce, the right to prepare derivative works, the right to distribute, and the right to public display/performance. Similar to other art forms, if a graffiti work complies with these requirements, it can be protected under copyright. For example, Keith Haring’s famous street art in the New York City subway, using white chalk to draw dancing people on the black advertising panels, is protected under copyright law, because they are original and fixed on subway panels.  However, not all graffiti qualifies for copyright protection. Some graffiti is too simple to be considered as artwork to be protected. These include for example, short phrases and words. 

Locally, graffiti is generally illegal if it is created without permission from the surface’s owner. According to Washington state law, graffiti is a gross misdemeanor. Under RCW 9A.48.090, a person is guilty of malicious mischief in the third degree if he or she writes, paints, or draws a mark of any type on any public or private building unless he or she has gained the permission of the owner of the property. 

Controversies surrounding graffiti art have persisted.  In Washington state, graffiti is everywhere on bridges, walls, and traffic signs. From 2015 to 2017, state transportation officials spent more than $600,000 to remove graffiti and this number raised to $1.4 million between 2019 and 2021. However, when the city officials quietly painted over a tunnel full of graffiti in Washington Heights, some residents accused them of “whitewashing” the culture and the history of the neighborhood. The comments show how the community has different stances on the issue of graffiti. In 2021, individuals brought a lawsuit challenging Seattle’s graffiti ordinance. Four people were arrested and jailed for writing easy-to-clean political messages on temporary barricades. They filed a complaint alleging that “SPD only select[s] to enforce the ordinance when views are expressed that do not align with their own.” None of the four, however, were ever prosecuted for the graffiti.

Graffiti is a form of artistic expression and brings positive outcomes to the community. At the same time,  graffiti without consent is also illegal and considered to be vandalism. Prior to creating their artwork, graffiti artists should seek the property owner’s consent, as a standard practice. Additionally, if the work meets the qualifications, including originality and fixation requirements,  it should be safeguarded under copyright law as a form of artistic expression. Given the ambiguity between graffiti and artistic expression, graffiti artists should always exercise caution and be mindful of the context and legality of their artistic endeavors in public spaces. 

One thought on “Graffiti Art and Related Legal Issues in Washington

  1. Pingback: AI Patents, Legal Ethics, and the Future of Content Creation – AI Lawyer Talking Tech

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