A Case for Change in Graffiti Law
- Audrey Plzak & Dee Santrach
- Oct 8
- 8 min read
Just last year, the iconic street artist Banksy earned approximately $10.57 million dollars from his art. In the same year, Los Angeles received over three hundred thousand requests to remove Graffiti citywide, and San Francisco spent more than $20 million on Graffiti clean up. Graffiti exists in a striking legal double bind: governments criminalize it as vandalism, yet the same legal system protects it under copyright and trademark recognition. This is why we see both millions in profits made, and millions in recognized damage as a result of one artistic movement. Artists themselves navigate this tension, oscillating between seeking legalization and relying on illegality as the essence of their work’s power. How can we draw a workable line between “street art” and “graffiti”? How should lawmakers respond to the split among artists over whether legalization strengthens or weakens their craft? And how do those debates shift once local businesses and city governments enter the picture? Graffiti law must evolve, and a decision must be made. Either outlaw it entirely, recognize it as a legitimate form of artistic expression, or find a middle ground better suited to the needs of artists, businesses, and governments. California has the opportunity to lead this pursuit by amending its penal code to reflect Graffiti’s cultural legitimacy while still respecting property rights.
The Double Standard
One of the primary issues that leads to the conflict over legalization of Graffiti is the definition. While people often approve of “good” Graffiti, such as murals, political statements, or intricate designs, society condemns “bad” Graffiti, like tagging, as a nuisance. The problem is that the law makes no distinction between the two. Culturally, the distinction is created by delineating between “street art” and “graffiti.” The term “street art” is used to describe works celebrated for their creativity and social meaning, while “graffiti” is shorthand for vandalism. In practice however, the two overlap, and there is no reliable legal or cultural separation. For this reason, “Graffiti” encompasses both street art and graffiti in the narrow sense, meaning it treats the million dollar works by Banksy and Dondi White and the lewd messages scrolled on bathroom walls equally. As law students and not art critics, we cannot begin to opine on how to distinguish between works of Graffiti. However, the solution does not require us to. Instead, by recognizing where the current law stands, identifying all relevant stakeholders, and understanding why reform is needed, we can amend the current Graffiti laws to remove the contradiction, and provide legitimacy for both artists and the society subjected to their art.
Current Legal Landscape
Under current California law, Graffiti is defined and punished as vandalism. Penal Code §594 criminalizes the defacement of property with “graffiti or other inscribed material,” regardless of artistic merit or cultural significance. Convictions can carry fines, restitution, and jail time up to one year. In addition to the criminal consequences, the Grafiti Removal and Damage Recovery Program permits municipalities to recoup cleanup costs from artists. Many counties within the state also restrict the sale of aerosol paints and broad-tipped markers to minors in an effort to reduce access to common Graffiti tools.
Paradoxically, the same works that expose artists to prosecution can be protected under federal intellectual property law. The Copyright Act protects “original works of authorship fixed in a tangible medium of expression,” which automatically protects creations such as Graffiti. Furthermore, under the Visual Artists Rights Act, artists may assert “moral rights” even in illegally created works. Most famously, such rights were asserted in the 5Pointz case, in which a federal court awarded $6.75 million to Graffiti artists whose murals were whitewashed without notice. The result is a profound contradiction: California (much like other states) treat Graffiti as a criminal blight, while federal law treats it as valuable art.
The Divide in the Artist Community
Even though the current legal landscape lends a clean outside perspective into the world of Graffiti, the dissonance among artists themselves is far murkier. To start, some argue that legalization would strip Graffiti of the very qualities that give it power like anonymity, risk, and freedom to create without permission. For many street artists, illegality is not a flaw but the feature that differentiates it from other art forms like canvas painting. It becomes a rebellious act that makes a public statement. Formal recognition, some fear, would turn Graffiti into just another regulated art market subject to rules and creative confinements that diminish the raw creativity of the art form.
On the other hand, some artists want Graffiti and street art to be legalized, at least to an extent, as a pathway for protection and monetization. Giving legal status to Graffiti can grant intellectual property rights, create the opportunity to partner with businesses and governments, and offer greater first amendment safeguards. The nearly 3,000 murals in an explosive response following George Floyd’s death in 2020 underscores that potential. Several of such murals were created with support from the communities and local governments, further demonstrating that public art can flourish when it is embraced rather than penalized.
The divide in opinions sets the stage for the larger issues lawmakers face. The real fight lies in the balance of property rights, free expression, and economic interests without extinguishing creativity.
The Impact on the Broader Community
Graffiti leaves a complicated mark on local businesses. A storefront covered in tags can make customers think the area is neglected or unsafe and that perception alone can reduce foot traffic. In Oakland’s Chinatown, business owners have reported paying repeated fines for Graffiti removal– cutting into profits through the cost of clean up and the loss of customers. Property values can also suffer. The National Association of Realtors reports that unwanted Graffiti lowers commercial property values around 15% but the drop can be closer to 25% when the markings are hateful or profane.
The impact extends well beyond individual storefronts. City governments spend millions each year on Graffiti removal and abatement programs. Those resources could otherwise support schools, transportation, or housing. Graffiti can also change how residents and visitors feel about a neighborhood. When walls and transit stops are covered with unapproved markings people often interpret it as a sign that deeper problems exist. This perception of disorder can discourage investment and contribute to the cycle of urban blight. City planners and architects worry as well. Skylines and historic districts are part of a city’s brand identity and Graffiti that clashes with a carefully planned aesthetic can make even vibrant neighborhoods feel neglected.
Graffiti and street art also generate economic opportunity when embraced rather than erased. Murals and high profile installations can attract tourists and inspire community pride. Some companies collaborate with street artists to create sponsored works that draw visitors and customers while compensating the artists. Figures like Banksy show how powerful this artistic economy can be. Even while remaining anonymous, he has built a global brand, whose murals, prints, and merchandise generate significant revenue. Legal recognition through copyright or moral rights gives artists and communities a way to capitalize on that value. But when a piece is created illegally the artist may lose the ability to enforce those rights, leaving property owners or opportunistic businesses to profit instead.
California’s current laws force cities, businesses, and artists into a costly and contradictory system. Reform that distinguishes destructive tagging from culturally significant art would not only protect property owners but also open a legal path for businesses and artists to share in the economic and cultural benefits of street art.
The Solution
To resolve the incoherence, while protecting the interests of all stakeholders, we propose a reframing of the criminal restriction on Graffiti to allow for cultural and artistic contributions. In California, this can be realized in an amendment to the current penal code. Specifically, the following amendment would carve out an exception for Graffiti that has been formally recognized as art while preserving property owners’ rights:
PEN §594 (a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism:
(1) Defaces with graffiti [...]
(b) The creation of a visual work on real property without the owner’s consent shall not be punishable under this section as vandalism if:
The work has been formally recognized by a local cultural or arts commission as having significant artistic or cultural value; and
The property owner has not filed a written complaint requesting its removal.
Nothing in this subdivision shall limit the property owner’s civil remedies, including removal of the work, recovery of costs, or damages for trespass.
Works falling under this subdivision may still be subject to removal in accordance with municipal ordinances, but such removal shall be deemed a civil, not criminal, matter.
In an effort to balance competing interests, this amendment would (1) preserve property rights by requiring owner consent for permanence, (2) permit municipality oversight to maintain the city’s aesthetic and safety interests, and (3) eliminate the disproportionate harshness of criminal penalties where the public recognizes artistic or cultural significance. Within this framework, property owners retain meaningful recourse for unwanted Graffiti through civil remedies, the community has a voice in determining the value of particular works, and the artists themselves gain legitimacy and recognition, in line with Federal law, for contributions of cultural and aesthetic value.
The benefits of the proposed amendment offer economic, social, and aesthetic benefits while preserving property rights. Shifting certain cases of Graffiti from criminal penalization to civil remedies would reduce the financial and administrative strain on small businesses and city governments. As mentioned earlier, small business owners in cities with legislation calling for fines for Graffiti are targeting the wrong people. The impacted businesses are calling for fines of the offenders, arguing that a civil framework would speed cleanup, lower legal costs, and avoid adding criminal charges to young offenders. Although civil litigation provided for in the amendment, and administrative costs, carries its own negative impact, those costs are far more predictable and can be offset by local grant programs or city supported dispute resolution.
Socially, the amendment would bring Graffiti closer to the constitutional protections enjoyed by other forms of creative expression. Graffiti currently occupies a gray area where it can be criminalized despite conveying political or cultural messages. Courts have recognized that visual art is protected speech under the First Amendment, yet artists still face criminal penalties for creating works in public spaces. By creating a civil pathway, California would affirm that art deserves comparable respect to speech and protest while still giving property owners recourse for unwanted markings.
Aesthetically, the amendment creates a natural filter for quality. Property owners and local cultural commissions would have discretion to determine which works merit protection. Graffiti that draws visitors or enhances a neighborhood’s character would be less likely to trigger complaints, allowing “good” art to remain without fear of criminal prosecution. Research shows that curated street art can raise foot traffic and tourism in surrounding areas. The feedback loop that is created encourages collaboration between artists, businesses, and cities.
Finally, a civil framework protects artists’ intellectual property rights. Under current law, artists may lose copyright claims if their work is deemed illegal, leaving property owners or opportunistic businesses free to profit. An amendment that acknowledges cultural value without blanket immunity would preserve artists’ ability to enforce copyright and moral rights while allowing property owners to seek removal or damages through civil channels.
Conclusion
Graffiti will always challenge neat legal categories, blurring the line between vandalism and art and forcing governments, businesses, and artists to weigh property rights against creative freedom. Defining “good” Graffiti may remain elusive, but amending California’s vandalism statute is a practical step the state can take now. A carve-out for works formally recognized for their cultural or artistic value, coupled with civil rather than criminal remedies, would give property owners control while protecting artists’ intellectual property and expressive rights. Economic, social, and aesthetic gains follow from the same premise: clearer rules that respect both property and culture allow everyone, including cities, businesses, and creators, to benefit without resorting to blanket criminalization or unchecked immunity.
*The views expressed in this article do not represent the views of Santa Clara University.
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