Reading the Illegible: Can Law Understand Graffiti?

38 Pages Posted: 17 May 2020 Last revised: 15 Dec 2020

See all articles by Katya Assaf Zakharov

Katya Assaf Zakharov

Hebrew University of Jerusalem - Faculty of Law

Tim Schnetgoeke

affiliation not provided to SSRN

Date Written: April 15, 2020

Abstract

This essay focuses on graffiti – the practice of illegal writing and painting on trains, walls, bridges, and other publicly visual surfaces. Although the practice of uncommissioned painting of images on walls dates back to the dawn of civilization, graffiti in its current form is a distinct social and artistic phenomenon that started in New York and Philadelphia in the 1960s, has grown into an international movement, and is constantly expanding, despite substantial efforts to fight it on the part of the authorities.

Scholars from a variety of disciplines have studied graffiti, revealing the diverse social and economic backgrounds of the painters, their various motivations, and the different forms graffiti paintings take. Despite this diversity, several scholars suggested that all graffiti communicates a common message. This message reveals and challenges the hegemonic power of property, commerce, and politics that dominate our visual environment. In addition, graffiti opposes the isolation of art from everyday life and rejects the authority of art institutions to define what “real” art is.

Social responses to graffiti are highly ambivalent. On the one hand, media often picture graffitists as “vandals” and “hooligans.” Local authorities define graffiti as an “epidemic” and declare “wars on graffiti.” On the other hand, graffiti is recognized as a valuable form of art, exhibited in mainstream museums sold for high prices. Thus, a highly regarded national museum may be exhibiting works by a graffitist who is serving time in prison for his involvement in graffiti. An illegal work of one graffiti artist may be protected from being painted over by others, and even restored by authorities should it be “vandalized.” While some graffiti works are recognized as cultural heritage, others are promptly whitewashed and their creators prosecuted.

Reflecting the ambivalent social attitude, the legal treatment of graffiti is highly uneven, punishing some graffitists for vandalism while granting copyright protection to others. Courts dealing with graffitists’ copyright claims rely heavily on factors such as commercial value of the works and recognition of the artist by mainstream art institutions. They clearly favor artists that deviate from the core graffiti culture by signing their works with their real names or protecting them from being painted over by other graffitists. This creates a kind of a “dialogue of the deaf” between legal systems and typical graffitists – anonymous artists experimenting with new styles, working outside the mainstream art canons purely for the sake of creativity without expectation that their work will be preserved or bring them money and public recognition.

Scholars have made various suggestions regarding the legal regulation of graffiti, ranging from toughening the criminal sanctions to providing more legalized spaces and art programs for the painters. Yet to date, no attempt has been undertaken to understand the dissenting message of graffiti and to consider an adequate legal response to this message. As Jean Baudrillard suggested, the subtle message of graffiti “must be heard and understood.” Doing this, in the legal sphere, is the central goal of this essay. Instead of suppressing or manipulating graffiti, we propose to answer its message with redefining the boundaries of physical property so as to restrict owners’ control over surfaces that shape our urban landscape. These surfaces will then be used as a medium of free visual expression, creating a public “forum” in its classical sense: a place of discussion, opinion exchange, and purely aesthetic expression.

This essay focuses on graffiti – the practice of illegal writing and painting on trains, walls, bridges, and other publicly visual surfaces. Although the practice of uncommissioned painting of images on walls dates back to the dawn of civilization, graffiti in its current form is a distinct social and artistic phenomenon that started in New York and Philadelphia in the 1960s, has grown into an international movement, and is constantly expanding, despite substantial efforts to fight it on the part of the authorities.

Scholars from a variety of disciplines have studied graffiti, revealing the diverse social and economic backgrounds of the painters, their various motivations, and the different forms graffiti paintings take. Despite this diversity, several scholars suggested that all graffiti communicates a common message. This message reveals and challenges the hegemonic power of property, commerce, and politics that dominate our visual environment. In addition, graffiti opposes the isolation of art from everyday life and rejects the authority of art institutions to define what “real” art is.

Social responses to graffiti are highly ambivalent. On the one hand, media often picture graffitists as “vandals” and “hooligans.” Local authorities define graffiti as an “epidemic” and declare “wars on graffiti.” On the other hand, graffiti is recognized as a valuable form of art, exhibited in mainstream museums sold for high prices. Thus, a highly regarded national museum may be exhibiting works by a graffitist who is serving time in prison for his involvement in graffiti. An illegal work of one graffiti artist may be protected from being painted over by others, and even restored by authorities should it be “vandalized.” While some graffiti works are recognized as cultural heritage, others are promptly whitewashed and their creators prosecuted.

Reflecting the ambivalent social attitude, the legal treatment of graffiti is highly uneven, punishing some graffitists for vandalism while granting copyright protection to others. Courts dealing with graffitists’ copyright claims rely heavily on factors such as commercial value of the works and recognition of the artist by mainstream art institutions. They clearly favor artists that deviate from the core graffiti culture by signing their works with their real names or protecting them from being painted over by other graffitists. This creates a kind of a “dialogue of the deaf” between legal systems and typical graffitists – anonymous artists experimenting with new styles, working outside the mainstream art canons purely for the sake of creativity without expectation that their work will be preserved or bring them money and public recognition.

Scholars have made various suggestions regarding the legal regulation of graffiti, ranging from toughening the criminal sanctions to providing more legalized spaces and art programs for the painters. Yet to date, no attempt has been undertaken to understand the dissenting message of graffiti and to consider an adequate legal response to this message. As Jean Baudrillard suggested, the subtle message of graffiti “must be heard and understood.” Doing this, in the legal sphere, is the central goal of this essay. Instead of suppressing or manipulating graffiti, we propose to answer its message with redefining the boundaries of physical property so as to restrict owners’ control over surfaces that shape our urban landscape. These surfaces will then be used as a medium of free visual expression, creating a public “forum” in its classical sense: a place of discussion, opinion exchange, and purely aesthetic expression.

Keywords: graffiti, street art, freedom of expression, first amendment, property, public forum, artistic expression, visual expression, law and arts, aesthetic expression

Suggested Citation

Assaf Zakharov, Katya and Schnetgoeke, Tim, Reading the Illegible: Can Law Understand Graffiti? (April 15, 2020). Connecticut Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3576465

Katya Assaf Zakharov (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Tim Schnetgoeke

affiliation not provided to SSRN

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