Get Your Own Street Cred: An Argument for Trademark Protection for Street Art

Street art is visual art created in public spaces, many times at the behest of the communities in which the work is created. It is a derivative of graffiti, which is the illicit marking of public locations, usually on buildings or train cars. Retailers’ appropriation of street art and graffiti is becoming commonplace, causing confusion in the market. As a result, street artists have filed an increasing number of copyright and trademark infringement lawsuits to protect their intellectual property rights. There is a debate regarding whether these artists are entitled to trademark protection given the expressive nature of their marks. Courts are reluctant to grant trademark protection since expressive works are traditionally protected under copyright law. Most street artists, as opposed to creators of “fine art,” however, use marks in a trademark manner to build reputations and identify the source of their works. This Note argues that courts should broadly interpret the Lanham Act’s “use in commerce” requirement to validate marks used by street artists. Street art substantially affects commerce and therefore should be covered by the Commerce Clause. A broad interpretation furthers Congress’s intent under trademark law to prevent consumer confusion. In the alternative, this Note contemplates treatment of street artists under the eleemosynary standard reiterated by the Eleventh Circuit Court of Appeals in 2001 in Planetary Motion Inc. v. Techsplosion, Inc., and considers the possibility of adding a famous mark exception to the use in commerce requirement.