Emma C. Peplow

Abstract

Street art is having a moment. Once criminalized and ardently combatted by city governments, street art has become a persistent presence in metropolitan cities, social media feeds, and even art galleries. Often coming in the form of graffiti murals applied to the exterior-facing walls of a building, these works are racking up significant price tags at auction houses and are raising property values in proximate areas. And yet, despite street art’s recent legitimization by the Second Circuit in a historic decision allowing the recovery of significant statutory damages upon the destruction of a work of recognized stature, a loophole in U.S. copyright law threatens to jeopardize these strides.

This Note delves into the conflict between the copyright protections of buildings and the copyright protections for the street art painted on them. A relatively underused amendment to the Copyright Act that provides copyright protections for buildings—the Architectural Works Copyright Protection Act (“AWCPA”)—has jeopardized copyright protections for street artists. It has allowed companies to prominently feature and profit off of the artists’ work in advertising campaigns without the artists seeing any financial return for the use.

Two recent cases have tested this legal loophole, with companies weaponizing the AWCPA—to varying degrees of success—as an affirmative defense to a copyright infringement claim brought on by the use of street art in their advertisements without permission from the artists themselves. These cases represent a significant threat to the financial interests of street artists—and in a way that was not specifically considered by Congress because street art lacked institutional legitimacy at the time of the AWCPA’s enactment. This Note argues the proper way forward is for Congress to amend the AWCPA to create a level playing field for artists, regardless of the medium on which their work exists.

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