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Graffiti Art and Related Legal Issues in Washington

/ Washington Journal of Law, Technology & Arts / 1 Comment
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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. 

Art mishaps: Who Foots the Bill?

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By: Nicholas Lipperd

One misstep at a museum social hour was all it took to destroy a $42,000 sculpture. Seconds after a museum patron accidentally bumped the pedestal, Jeff Koon’s porcelain “balloon dog” sculpture lay shattered on the floor. As onlookers watched in horror, the person who bumped it surely had one thing racing through her mind: will I have to pay for this? It was surely the same question asked by the parents of the twelve-year-old who tripped and accidentally put a fist through a $1.5 million painting in Taiwan. Exploring both practical effects and legal theories that apply to mishaps with museum patrons, this article comes to the conclusion that there is only minimal worry.

The majority of mishaps involving art end up being covered by insurance, but relying on insurance is never a straightforward and easy process. As damaged art claims are on the rise, the incentive for insurance companies to make claims a straightforward process continually shrinks. Further concerns arise if there are terms in the insurance contract that disclaim damage from patrons in certain instances. What if the museum is displaying the art for sale on consignment and does not obtain insurance, thinking to save a few pennies? This is certainly an option for museums, though states like Washington impose strict liability for damage on museums when selling art on consignment. While insurance removes most of the worry over museum mishaps, it is not a foolproof solution. 

Even if museums lack the safety net of insurance coverage, patrons likely need not fear the price tag of accidental damage. Any claims based on such damage will be governed by state tort law because museum patrons have traditionally been considered invitees. While many states have moved past such rigid categories in tort law with respect to third-party harm on public land, the categorization of invitee is still important to understand why liability will not likely fall on a museum patron.

A public invitee is a person who is invited to the property for a purpose for which the land is held open to the public. A museum thus owes a duty of care to museum patrons as invitees, and the museum is liable for injuries and damages caused by the condition of the museum. In layperson terms, this means if a museum failed to properly secure a priceless sculpture and a patron bumped it, it is the museum and not the patron who is responsible. This protection may not hold when the patron specifically recognizes a danger and fails to adhere to it, is trespassing, acts intentionally, or is otherwise acting negligently. The responsible museum-goer need not worry. Yet, these exceptions to invitee protection call in to question a few problematic situations.

If a patron’s actions in damaging art are truly intentional, there are not many defenses available. This is not particularly controversial; if one intends to destroy art, one should be held responsible. But when the action is intentional but the consequences are not, what then? The outcome may be uncertain. In one comical example, a museum janitor thought a contemporary art exhibit was simply trash and consequently “cleaned up” the exhibit by throwing it away. Luckily, the actions were viewed as an honest mistake by the museum, and she was not responsible for the cost. 

If museums have interactive exhibits, the patron is acting intentionally when interacting with the exhibit. When such exhibits invite the patron to physically engage with the art past merely pushing a button, greater risk of damage is inherent. Common sense would dictate that a patron who, hypothetically, breaks a lever on a piece of interactive art after being invited to push said lever, has not intentionally broken anything, despite the act being intentional. One legal theory that protects the patron here parallels the personal injury defense of assumption of risk. The museum is responsible for setting up any interactive exhibit and understands that the risk of damage is increased when inviting patrons to interact. While this protects patrons who act reasonably in such exhibits, a negligence standard may still be applied to their actions in fact-specific circumstances. 

Negligence may pose the most risk to museum patrons just as it does in many other social settings: when alcohol is present. It is increasingly common for museums to host special mixers or functions where alcohol is provided or available. “I just had one too many” is not a valid excuse in any setting and especially not at a museum. A patron’s actions will be judged as either responsible or negligent when compared to a sober adult in the same setting. While commercial hosts can be held liable for damages caused by the intoxication of the persons they serve if those persons are apparently under the influence of alcohol, this is fact-specific and not a protection to be relied upon when the liability for tens of thousands of dollars of damage may be called into question.

So if you plan on enjoying a nice afternoon at the museum, you shouldn’t spend much time worrying about covering the exorbitant cost of an unfortunate mishap. However, should you consider visiting a new interactive exhibit at your local glass museum after a few happy hour drinks, more caution is certainly warranted.

Hidden Hurdles: The True Cost of the Bar Exam

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By: Kayleigh McNiel

For every law student, the bar exam is the pinnacle of academic challenges. As the final hurdle at the end of a grueling 3-year obstacle course, hidden costs throughout the process of preparing for the exam and applying for admission to the bar present additional barriers. The impact of which disproportionately affects first-generation and BIPOC law students who are less likely to have the financial resources to purchase commercial bar prep courses or study full-time without having to work. Racial disparities in first-time bar passage rates have led some to argue that the bar exam is a test of students’ resources, not their actual skill or competence on legal issues. 

Discriminatory Design

The “key ingredient” to passing the bar is having the ability to dedicate an extensive amount of time to prepare for it. This is according to researchers at AccessLex Institute who examined factors such as bar preparation practices, financial resources, household income, and family support for more than 5,000 first-time test-takers of the Uniform Bar Exam (UBE) between July 2016 and February 2018. In fact, candidates who studied the recommended 40 hours per week for at least two months before the exam were significantly more likely to pass. Unsurprisingly, success rates were substantially higher for candidates with higher household incomes, those who received financial support from their family during law school, and those who purchased commercial bar prep courses.

These factors contribute to the stark racial disparities in bar exam passage rates. According to the American Bar Association, last year just 57% of Black candidates, 60% of Native American candidates, 69% of Latinx candidates, and 75% of Asian candidates passed the bar exam on their first try. While 83% of White candidates succeeded in doing so. The racial gap in passing rates has continued to grow over the last three years, likely due to the greater economic losses communities of color experienced due to the COVID-19 pandemic.

Structure of the Exam(s)

To become licensed to practice law in Washington State, candidates must pass three separate exams: (1) the Uniform Bar Exam (UBE) which is a two-day exam consisting of three parts, (2) the Multistage Professional Responsibility Exam (MPRE), a two-hour exam that can be taken within three years of the UBE, and (3) the Washington Law Component (WLC), a four-hour multiple choice test which can be taken within three years of the UBE.

So How Much Does It Really Cost? Hidden fees and surprise price tags 

Understanding the cost of taking the bar exam (in Washington State) is key to setting yourself up for success. Unfortunately, this information is not always readily available as there are additional fees and costs associated with each part of the application and testing process. The individual circumstances of each applicant further dictate how much they are charged.

Registration fees: $585 – $885.

Most first-time test takers will pay $585 to register for the UBE in Washington State. However, a hefty $300 late fee attaches to all applicants who register after the deadline. So plan ahead! Additionally, those who pay with a debit or credit card will pay an additional 2.5% transaction fee bringing the total to $599.625, or $907.13 with a late fee. While there is no fee to pay by electronic funds transfer or check, these methods can take an additional 7 days to process your payment. 

Bar Review Course: $1,695 – $4,199. 

While not required, commercial bar prep programs have become essential to passing the exam and can cost thousands of dollars. Companies offer a variety of resources, study aids, and courses. While the most well-known bar prep review providers offer discounts and some scholarships, most students will pay close to these base prices: $1,695-$2,695 (Themis), $1,999-$4,199 (Babri), or $1,699-$3,999 (Kaplan).

Exam Software: $120. 

To be able to use a laptop during the essay portion of the exam, candidates are required to download ILG Exam360 software. Candidates are responsible for providing their own laptops and are not given any additional time on the exam if they suffer from technical difficulties. 

Laptop Fee: $100. 

While it appears that Washington State no longer charges a separate laptop fee since the pandemic, most states do.

Travel, Lodging and food: $340 – $500

A hidden cost that most people fail to consider is the cost of travel, lodging, and food for those who have to travel to the testing center. Washington State alternates between testing centers in Seattle and Yakima. For JD candidates living in Seattle, this year they must make the 2.5 hour drive (or 3.5 hour bus ride) to the Yakima Convention Center and fork out the cost of a hotel for the two-day exam. Gas, travel time, food, and shelter for this trip averages several hundred of dollars. Some hotels near the testing center offer booking discounts for those taking the bar exam.

Multistate Professional Responsibility Exam (MPRE): $150. 

This separate, two-hour multiple-choice exam can be taken anytime within three years of passing the UBE. The MPRE is required in all but two States. 

Character and Fitness Investigation Fee: $120 – $450. 

Another mandatory, hidden charge is the “investigation fee” paid to the National Conference of Bar Examiners (NCBE) to conduct background checks into candidates’ character and moral fitness. ALL applicants in Washington are required to pay this investigation fee but are not charged when they submit their initial application. Only after the WSBA has reviewed their application will they receive payment and authorization forms from the NCBE. These fees vary depending on the level of investigation required. 

As part of this investigation, candidates may have to provide additional third-party documents related to criminal or employment records. Most states charge between $50-$90 for certified criminal records and additional fees of up to $3.50 per page of court filings.

Lost wages during bar prep: $9,833 – $16,666

The American Bar Association recommends studying 40 hours a week for a minimum of 8-10 weeks to adequately prepare for the Bar exam. Most applicants are unable to work during this time, which means they will miss out on at least two months of income. This estimate is based on the average annual income of first-year University of Washington Law School graduates which varies between $59,000 and $100,000 annually depending on their field of practice. 

Additionally, applicants continue to incur cost of living expenses while preparing for the bar exam — rent, food, gas for your car, phone bill, and additional financial obligations.

Law School tuition: $125,064 – $160,362

Undeniably, the largest expense of bar exam preparation is three years of law school tuition. While Washington State is one of the few jurisdictions that does not require a law degree to take the bar exam and practice law, the vast majority of applicants do. While the cost of law school tuition for each student varies substantially based on which law school they attend and their scholarship grants, most students at UW Law school pay $41,688 annually for in-state tuition and $53,454 if they are out-of-state. 

How to Pay for the Bar? The problem with bar exam loans

Most law students survive on federal student loans throughout their education but do not qualify for student loans while studying for the bar because they are no longer enrolled as students. Bar exam loans are another option but have serious drawbacks. So much so, that Forbes even cautions applicants to consider cheaper alternatives. 

Bar exam loans are personal loans specifically to cover expenses during bar exam preparation. While many lenders offer bar exam loans with low-interest rates, JD candidates without any income often need a cosigner to qualify.  Additionally, lenders do not provide an interest rate estimate before completing a full application, thereby limiting JD candidates’ ability to shop around.

In short, the exorbitant cost of becoming a lawyer continues to be the biggest barrier to advancing diversity in the legal profession. Scholarships are available to offset the cost of preparing for the bar, but much more needs to be done by Universities to support JD candidates in achieving success.

Bar exam scholarship opportunities:

Bar review scholarships

  • Women of WSAJ Bar Preparation Scholarship – provides women law school graduates and APR 6 law clerk graduates with scholarships to help defray the costs of bar review courses.
  • Barbri Public Interest Scholarship – substantially lowers the cost of a bar prep course for applicants committed to be employed in the public interest sector with an annual salary less than $75,000.

Massive Tech Layoffs Negatively Impact H1-B Visa Workers and Immigration

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By: Talia Cabrera

At the beginning of 2023, no one would have expected that the U.S. tech sector would be in the headlines for laying off thousands of tech workers. Tech giants like Google, Meta, Disney, and Microsoft were faced to deal with the consequences of inflation and potential recession after the pandemic. Even Amazon was not free from the wave of layoffs after their profits increased 220 percent during the first year of the pandemic. Collectively, the U.S. tech sector has laid off more than 150,000 workers. So why are we seeing tech companies layoff their workers? Rapid hiring because of fast growth without a care in the world about the implications of a workers life, especially H-1B visa holders.

Though layoffs are meant to alleviate the financial burden companies are left to deal with, they unfortunately disrupt a worker’s life with just a simple email. Workers who no longer have a career are now left to start over and find a new job during a time when companies are freezing hiring. Though these layoffs have had a negative impact on thousands of people, one group of workers is left in a unique position: US immigrants holding an H-1B visa.

The H-1B visa is a work visa that allows U.S. employers to sponsor a foreign worker to work in the U.S. for a specific period of time. These “specialized skill” visas are heavily used by large tech companies and have contributed to their success. For example, in 2021, Amazon was approved for over 4,800 H-1B visas, Miscroft was approved for 1,200 H-1B visas, and Apple had over 1,000. Yet, the recent wave of tech layoffs has shown us the lack of support H-1B visa holders have when the unexpected happens. Once an H-1B visa holder is told that they no longer have a job, they have to face the harsh reality of a limited time period to find a new job. If an H-1B visa is unable to find a new employer within a 60-day window, they may be forced to leave the United States and return to their home country.

But the reality is that many of these visa holders have built a life in the United States for years and are now facing the uncertainty of being deported. These visa holders have invested time and resources in their careers in the U.S. and many of them have built a family and community. Now, the post-pandemic economy is highlighting how this system needs to be updated. In the recent economic climate, the hiring freeze is leaving visa holders concerned about their future in the United States, especially now having to compete in an already competitive work sector.

So what needs to change? There need to be more resources in place to help H-1B visa workers during layoffs. Tech companies have invested millions of dollars into lobbying for visa workers to invest in innovation so they need to make sure they support them in their transition period. Now, tech companies should facilitate a smooth transition or risk losing future generations of skilled workers. Maybe tech companies need to lobby for workers to extend the 60-day window or keep them as sponsors until a new company can sponsor that so they can continue working for citizenship. If tech companies want to use H-1B visa holders then they need to not take advantage of them and leave them left with nothing.

The recent wave of tech layoffs in 2023 has had a significant impact on many workers and has highlighted the lack of support for tech workers. Employers and policymakers need to stop using greed as a motivating factor for innovation and instead make sure their workers are taken care of. But until then, we will see big tech companies concerned about making money without a care in the world.

Alexa: Are You Going to Testify Against Me?

/ Washington Journal of Law, Technology & Arts / 1 Comment
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By: Melissa Torres

Life seems pretty great in a world where we can turn lights off, play music, and close the blinds by simply speaking it into existence. But, what happens when your conversations or home noises are used against you in a criminal investigation? 

Smart speakers, such as Google Home and Amazon Alexa, are marketed as great tech gifts and the perfect addition to any home. A smart speaker is a speaker that can be controlled with your voice using a “virtual assistant”. It can answer questions for you, perform various automated tasks and control other compatible smart devices by simply activating its “wake word.”

According to Amazon.com, in order for a device to start recording, the user has to awaken the device by saying the default word, “Alexa.” The website states, “You’ll always know when Alexa is recording and sending your request to Amazon’s secure cloud because a blue light indicator will appear or an audio tone will sound on your Echo device.” Unless the wake word is used, the device does not listen to any other part of your conversations as a result of built-in technology called “keyword spotting”, according to Amazon.

Similarly, Google states, “Google Assistant is designed to wait in standby mode until it detects an activation, like when it hears ‘Hey Google.’ The status indicator on your device will let you know when Google Assistant is activated. When in standby mode, it won’t send what you’re saying to Google servers or anyone else.” 

Consumers consent to being recorded when they willingly enter a contract with these smart devices by clicking “I agree to the terms and conditions.” However, most people assume this refers only when implicating the “wake word.” Despite assurances from tech giants that these devices do not record without being prompted, there have been many reports that suggest otherwise. And recent in years, these smart devices have garnered attention as they have been called as the star witness in murder investigations.  

In October 2022, someone fatally shot two researchers before setting fire to the apartment they were found in. According to the report, Kansas police believe the killer was inside the apartment with the duo for several hours, including before and after their deaths. Investigators found an Amazon Alexa device inside the apartment and filed a search warrant for access to the device’s cloud storage, hoping it may have recorded clues as to who is responsible for the murders. If the police obtain relevant information, they may be able to use it in court, depending on how this evidence is classified.

Under the Federal Rules of Evidence, all relevant evidence is admissible unless another rule specifies otherwise. Specifically, statements that are considered hearsay are not admissible unless an exception applies. Hearsay is any statement made outside the presence of court by a person for the purpose of offering it to prove the truth of the matter asserted. Although these devices technically do produce statements, courts have held that a statement is something uttered by a  person, not a machine. However, there is an important distinction between machines that have computer stored and computer generated data. Computer stored data that was entered by a human has the potential to be hearsay, while computer generated data without the assistance or input of a person is not considered hearsay.  The question of how these statements will be classified and whether they will be permitted in court is up to the judge. 

As such, this isn’t the first time police have requested data from a smart speaker during a murder investigation. In 2019, Florida police obtained search warrants for an Amazon Echo device believing it may have captured crucial information surrounding an alleged argument at a man’s home that ended in his girlfriend’s death. In 2017, a New Hampshire judge ordered Amazon to turn over two days of Amazon Echo recordings in a case where two women were murdered in their home. In these previous cases, the parties consented to handing over the data held on these devices without resistance. In 2015, however, Amazon pushed back when Arkansas authorities requested data over a case involving a dead man floating in a hot tub. Amazon explained that while it intends not to obstruct the investigation, it also seeks to protect its consumers First Amendment rights. 

According to the complaint, Amazon’s legal team wrote, “At the heart of that First Amendment protection is the right to browse and purchase expressive materials anonymously, without fear of government discovery,” later explaining that the protections for Amazon Alexa were twofold: “The responses may contain expressive material, such as a podcast, an audiobook, or music requested by the user. Second, the response itself constitutes Amazon’s First Amendment-protected speech.” Ultimately, the Arkansas court never decided on the issue as the implicated individual offered up the information himself.      

Thus, a question is still unanswered: Exactly how much privacy can we reasonably expect when installing a smart speaker? As previously mentioned, these smart speakers have been known to activate without the use of a “wake word”, potentially capturing damning conversations. Without a specified legal standard, there’s not much consumers can do to protect their private information from being shared as of now, fueling the worry that these devices can be used against them. Tech companies, like Amazon and Google, suggest going into the settings and turning off the microphone when you aren’t using it, but that requires trusting the company to actually honor those settings. Users also have the option to review and delete recordings, but again you have to trust the company to honor this. The only sure way to protect yourself from these devices is by simply not purchasing them. If you can’t bring yourself to do that, be sure to unplug the devices when you’re not using them. Otherwise, it’s possible these smart speakers may be used as evidence against you in court.