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Does an illegal mode of creation or fixation (such as vandalism by graffiti) mean that the work is not the subject of copyright?

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1 Answer 1

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The Copyright Act provides that (17 U.S.C. § 102):

Copyright protection subsists, in accordance with this title, in original works of authorship fixed1 in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

It also says:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

There is no explicit requirement that the work be legally produced, and there is no exception for copyright protection if the work is illegally produced.

See also Celia Lerman, "Protecting Artistic Vandalism: Graffiti and Copyright Law" (2013) 2 N.Y.U. J. Intellectual Property and Entertainment Law 295:

there are several examples outside of graffiti where copyright protects right-infringing works. Copyright still attaches to photographs taken that violate privacy rights: a paparazzi photographer has obtained copyright protection over a picture that he took of a celebrity while violating her rights to privacy, and a camp counsellor obtained copyright over a picture of a minor, taken without her parent's permission. A journalist has received copyright protection over an article that reveals state secrets. A student may obtain copyright protection for a painting of a minor killing a policeman, even though the work could constitute an illegal threat under criminal law.

Copyright protection is denied to a work only if the work itself violates copyright. ...

If U.S. copyright law included a general "illegality clause," then copyright would not protect works that offend any other body of law. Such clauses are contained in other copyright and trademark laws around the world. U.S. copyright law does not include such a provision. ...

[a vandal's] work can still be protected under copyright, because vandalism does not preclude copyright protection.

Of course, copyright does not prevent the destruction of the work by the person on whose property the work is fixed, but other laws can, including the Visual Artists Rights Act. See Q&A: Does copyright law prevent the destruction of works?


1. § 101: "A work is 'fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

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  • Thanks for that, although it seems like VARA is more of a special exception for works of "recognized stature", and not apply to the vast majority of illegally-created art.
    – Barmar
    Aug 1, 2023 at 15:50
  • If an artist doesn't fix a work on a non-ephemeral medium, nor make arrangements for anyone else to do so, but someone nonetheless does fix the work in a persistent medium, could the artist claim copyright on the work despite having abandoned it to the winds of fate?
    – supercat
    Aug 1, 2023 at 16:17
  • @Jen: I was thinking about the question in relation to this on. If an artist's ability to claim a copyright on ephemeral works would be limited, and if a wall which is going to be repainted would represent an ephemeral medium, an artist would have limited ability to claim copyright on graffiti absent some effort to preserve it.
    – supercat
    Aug 1, 2023 at 17:31
  • @Myself: §101 answers it. The work needs to stay "for more than a transitory duration". So a poem written in sand by the sea or in snow wouldn't count. Grafitti probably depends on how long it stayed up.
    – gnasher729
    Aug 2, 2023 at 11:31
  • Good catch. Interesting article.
    – ohwilleke
    Aug 2, 2023 at 18:52

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