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Despite Graffiti’s Global Popularity, Cities Still Criminalize It

Mural by JC Rivera, Chicago. Photo by Terence Rivera, via Flickr

Mural by JC Rivera, Chicago. Photo by Terence Rivera, via Flickr

Street art and graffiti have become big business in the art world. In October 2018, the art world famously watched ’s Girl with Balloon sell for $1.3 million at Sotheby’s and then partially self-destruct. However, just as graffiti and street art have become commonplace in galleries, auction houses, and museums, such practices are still considered criminal acts in cities across the U.S.
Just last month, the graffiti artist Sheefy McFlywas arrested in Detroit for suspected vandalism while he was working on a mural commissioned by the city. At the time, McFly didn’t have his city-issued permit on him.
According to Louise Carron, the executive director of the Center for Art Law, the blurry distinction between graffiti and street art is part of the problem. There is a “fine line between what is considered graffiti, a method of expressing yourself on property that is not yours, and street art, which has become an artistic movement,” she said. Some see graffiti as an aerosol art; this was the phrase used to describe the practice in the landmark 5Pointz case, which extended Visual Artists Rights Act protections to aerosol artists. Others include graffiti under the rubric of street art along with wheat paste, stickers, stencils, and other forms.
For municipal authorities, the definition is very clear: Graffiti is a form of vandalism. Cities have had an adversarial relationship with graffiti artists for decades. The death in 1983 of artist Michael Stewart at the hands of the New York City transit police, after he allegedly tagged a subway station, is one of numerous examples of the grave risks graffiti artists run to practice their art (and the subject of a current exhibition at the Guggenheim Museum). Most cities penalize graffiti with fines, volunteer work, and sometimes jail time. New York and Detroit use a monetary threshold to restore property to determine if the crime is a misdemeanor or felony. In New York, graffiti that causes damage to property worth more than $250 is classified as a Class E felony; if the property damaged is worth more than $1,500, it becomes a Class D felony.
5pointz, NYC. Photo by Nick Normal, via Flickr.

5pointz, NYC. Photo by Nick Normal, via Flickr.

Cities have spent a lot of time, money, and effort on scrubbing what it considers to be graffiti from their streets. The Portland Street Art Alliance, a nonprofit supporting street art in Portland, Oregon, estimated that the city spent an average of $2 million to $5 million annually on graffiti removal and abatement efforts. Chicago’s graffiti blasters have overzealously destroyed both commissioned and historic murals, including a mural by that was erased last summer just two weeks after it was finished. Now the city keeps an online registry to help prevent these types of accidents.
Some municipalities have gone even further, restricting access to spray paint citywide. New York, Portland, and Los Angeles have special laws governing the sale of spray paint. Portland requires all vendors of “graffiti materials” to keep a log of purchasers that is subject to inspection by the city’s police department. Among major U.S. cities, Chicago has by far the most hard-line stance on spray paint: Its sale is banned within city limits.
In addition to regulating spray paint sales, some cities have clamped down on what is permitted to go onto private citizens’ walls. Detroit and Portland penalize property owners who let graffiti linger on their walls—in the former, property owners have seven days to remove graffiti before getting a ticket. Both cities require permits for murals; permission of the owner is not sufficient.
And just as some forms of graffiti are increasingly tightly regulated, galleries around the world sell the work of graffiti and street artists; auction houses are selling works by Banksy, , and others. And havens for graffiti, such as Miami’s Wynwood district, have become popular tourist attractions. Increasingly, in the same cities where graffiti is criminalized, street art is seen as a tool for revitalization—and, potentially, gentrification. Jordan Nickel, a.k.a. , a Chicago-based artist and graffiti historian, explained that graffiti was “demonized,” but has also been “understood as a great way to enhance a development or neighborhood.” In 2016, the University of Warwick undertook a study cross-referencing Flickr images of street art and property values in London, and found “higher property prices tied to more art images.”
Carron sees some artists moving away from the illegal work. She said some artists have looked for creative ways to express themselves on the right side of the law, whether by seeking property owners’ permission, or by taking commissions. Nickel added that graffiti removal efforts—commonly known as “the buff”—led to the erasure of Chicago’s historic graffiti pieces, but also “forged stronger generations of people who fought a lot harder [and] painted a lot harder.”
For Carron, graffiti exists in an uneasy in-between space. “The law is not catching up with the reality of the art market today,” she said.
That in-betweenness has other repercussions, especially when it comes to graffiti artists’ intellectual property rights. Companies have tried to argue that since street art is illegal, there are no copyright protections for the artists. Attorney Jeff Gluck, who specializes in intellectual property law, said that “some corporations are fighting against artists’ rights and trying to destroy protections for street art and graffiti.” Gluck is representing four artists who were recently sued by Mercedes-Benz after the automaker posted images featuring their murals on Instagram.
While the art market has thoroughly embraced street art and graffiti, and intellectual property law is slowly coming around, it remains to be seen whether cities will take more enlightened approaches to this art. For Carron, this possibility raises another philosophical conundrum: Would legalizing graffiti be “going against its very nature?”
Elisa Shoenberger