Tag THIS.

October 8, 2009 7:04 PM

There's this grafitti tagger here in town who scrawls his name everywhere in big black magic marker. On the sides of mailboxes, on walls, on doors. Thing is, it's a nice design and he's got a catchy name. I was thinking the other day that if I started a clothing line, I would like to use his tag as my trademark logo. Chances are, he hasn't trademarked his tag. If I decided to trademark it myself, then deployed it as the name of my clothing line, as well as use his scrawl on the backs of the hoodies I sold - legally, would he have any recourse?
posted by Sully to sports, hobbies, & recreation (29 comments total)

People generally own their intellectual property, but it's up for debate as to whether or not he'd ever find out or be able to prove it. So, though I am not your lawyer, I don't think it's likely he'd have the means to get recourse. That said, do you really want to roll like that?

Why not design something similar instead of stealing his logo?
posted by Issithe at 7:13 PM on October 8 [7 favorites]

It seems like whether he has registered it as a trademark is irrelevant, as he almost certainly holds the copyright to his design (assuming it is original). Here's some further reading on copyright issues as they pertain to logo design.

Also, that would totally be a dick move. Don't do that.
posted by dersins at 7:13 PM on October 8 [9 favorites]

Would it implicate you as the graffiti artist? Enough so that the cops may have cause to at least question you? And how would you even defend yourself? "No that wasn't me. I like it and stole the idea from the kid who has been doing it."
posted by jerseygirl at 7:14 PM on October 8 [1 favorite]

Just pay the dude fifty bucks or something and make him sign the rights over to you.
posted by Ruki at 7:15 PM on October 8 [3 favorites]

If you wanted to be a dick, but less of a dick, you could use the Nike technique and pay him a few hundred dollars for the design. A few hundred is not a small amount of money, but it's tiny compared to the expense of starting a clothing line.
posted by arcolz at 7:16 PM on October 8

is this just speculative? Googling trademarks suggests that claim is established by priority of use, not by registration. If he's scrawling his name everywhere in the neighborhood, it sounds like you'd have a hard time establishing priority of use.

Also, it's not nice to steal from other people.
posted by puckish at 7:16 PM on October 8

Probably not. But, then again, maybe. It all depends on how popular the graffiti artist is (see Trevor Brown and Crystal Castles).
posted by vas deference at 7:18 PM on October 8

I don't know anything about the legal side of things, but I'd vote for you eventually ending up on "You thought we wouldn't notice."
posted by Juliet Banana at 7:21 PM on October 8 [1 favorite]

Think of it this way...

If you start a clothing line billing itself as "fresh and authentic" (which I can only assume will be how you market it given that you are wanting to use a graffiti artist's tag for the logo), how big of a PR issue would it be if he came forward and proved that you ripped off his design once you're all big and famous?

How much would it cost you financially if he took you to court and proved that you ripped off his design which is copyrighted just by him designing it?

Don't be a dick and even if you want to be a dick and do it, the business person in you should recognize that the risks are far greater than the reward.

An alternative would be to take a couple pictures of his tag, and post it somewhere to 99designs and get someone to design a custom logo for you using the tag as inspiration. That way you don't infringe on his copyright, and you're not a dick.
posted by Elminster24 at 7:23 PM on October 8

But for him to claim copyright would require him to admit to causing thousands of dollars in damages. Tagging a store window where I live is a criminal act. I am personally not interested in actually stealing his logo and using it for a clothing line. I'm more interested in the legal bind I would be placing the graffiti artist in. How can he claim credit and authorship when to do so would require him to also admit to criminal acts? I know that to take his logo and use it as my own is a dick move, but I am fascinated by the position he would be placed in.
posted by Sully at 7:23 PM on October 8

Puckish - yes, this is speculative, but it is a very real question that's been nagging at me that I don't have the answer to, and I hoped that someone did. Is it considered copyrighted if the symbol is done during the commission of a crime?
posted by Sully at 7:33 PM on October 8

But for him to claim copyright would require him to admit to causing thousands of dollars in damages.

Unless he could prove that he came up with the logo first, in a sketchpad or on a canvas or (insert perfectly legal medium here). He does not need to admit to being responsible for every single incidence of tagging in order to claim copyright; in fact, once he has established copyright he could probably pretend to be indignant that some criminal vandal has stolen his design and used it to deface store windows.
posted by nihraguk at 7:35 PM on October 8

I am fascinated by the position he would be placed in.

It's an interesting dilemma. But a graffiti artist probably isn't interested in doing things in a legal or typical way. (If they were, they'd work on canvas.) So don't expect to get any cease and desist paperwork from his lawyer. Expect to get your car tagged with glass etch instead. Can you replace windshields faster than you can print up hoodies?
posted by Jon-o at 7:36 PM on October 8 [4 favorites]

Well, I know more about graffiti than I do about copyright law, but I would guess that, provided the crime isn't copyright-related, it wouldn't be an issue. There might be some parallels here toward sampling law. Or maybe graffiti just makes me think of hip-hop.
posted by box at 7:37 PM on October 8

Just pay the dude fifty bucks or something and make him sign the rights over to you.

Despite the implications of his actions, this is still an art form and he's probably spent a lot of time working on his tag and anything else he might do in his spare time relating to tagging and design in general so there's probably more (possibly a LOT more) where that came from. If and when you start a clothing line, get this guy and his vandalism off the street and into your shop -- do something you both love.

$ Profit $

Also he'd likely fall over laughing at $50.
posted by june made him a gemini at 7:54 PM on October 8 [2 favorites]

Personally, if I were the graffiti artist, I'd consult with a lawyer and do the math as to whether I'd get more money out of suing you for copyright infringement than I would be fined for tagging in the first place.

If I'd make a profit, I'd do it in a heartbeat.
posted by Elminster24 at 7:56 PM on October 8 [1 favorite]

Elminster24 writes "Personally, if I were the graffiti artist, I'd consult with a lawyer and do the math as to whether I'd get more money out of suing you for copyright infringement"

In the US, which I'm guessing is where the OP lives from their posting history, unless you register your copyright in an art work you can only sue for actual damages in copyright infringement cases. I can't imagine the damages in this case being significant.
posted by Mitheral at 8:24 PM on October 8

Despite the implications of his actions, this is still an art form and he's probably spent a lot of time working on his tag and anything else he might do in his spare time relating to tagging and design in general so there's probably more (possibly a LOT more) where that came from. If and when you start a clothing line, get this guy and his vandalism off the street and into your shop -- do something you both love.

Yup. Better to have a good relationship with this guy and get a good reputation as someone who cares about local art and local artists.
posted by kathrineg at 8:35 PM on October 8 [2 favorites]

[few comments removed - please use the flag feature and don't screw up threads please, thanks.]
posted by jessamyn at 8:51 PM on October 8

But for him to claim copyright would require him to admit to causing thousands of dollars in damages.

Not quite. He could make the argument that he developed the tag, show his sketchbooks as he developed it, and show its placement on legal things. Then he could make the argument that the tagging around the city is other people stealing his design, just like you did. The prosecution would have to prove beyond a reasonable doubt that he was responsible for the tagging.
posted by Netzapper at 8:55 PM on October 8

There is precedent for a graffitti artist going "mainstream" - check out the case of Banksy from Bristol, UK.

He's had exhibitions, books published... yet his presumably illegal works are still up on walls all over the place.

I think he may have vandalised other peoples' exhibitions at some point too...!
posted by KMH at 2:11 AM on October 9

Does it bother you that the more you make it possible for someone to make money or gain notoriety from drawing on all sorts of property that isn't his/hers, the more you encourage people to draw on property that isn't his/hers? It bothers me.
posted by lpsguy at 6:02 AM on October 9

In the real world, there's a lot of reasons to get the guy to sign on the dotted line.

In the fantasy world it sounds like you're living in... seriously, though. Do you REALLY want to piss off a guy who's willing to deface other people's property? If he personally won't deface YOU than he knows someone who will.

Make him a partner - give him 10% of what you make, but make him register the legal stuff.
posted by chrisinseoul at 6:31 AM on October 9 [1 favorite]

I think you're missing the bigger problem here. Lets say you did go through with it, and set aside the issue of copyright—now it's your logo that's getting scrawled all over town. That's not good PR.

Do it right: take a photo of the tag to a graphic artist, tell them you want something in that style, and get a real logo that you own. That way there's no problem with copyright or with your brand being indelibly linked to some jerk scrawling on other people's stuff.
posted by Kadin2048 at 8:13 AM on October 9

Find the artist. Offer him a job designing you a logo. If that logo is extremely similar to local graffiti, will anyone care?
S/He doesn't have to admit vandalism, learns that there are legit, profitable means of expression, gets paid.
You get the logo.
Profit!
posted by theora55 at 8:53 AM on October 9

I like what june made him a gemini and chrisinseoul at said. Find him and make him a partner. After all, he's the creator and you're the businessman. It's a perfect partnership and it's honest. The suggestions to pay him a small amount of money would still make you "not a very nice person." Do the right thing.
posted by VC Drake at 11:13 AM on October 9

Obviously claiming the design as his own would expose him to legal liability but it would not constitute proof that he committed the graffiti in question: he could claim you were simply the second (or more) person who had stolen it from him, or more specifically that you had stolen it from a different thief who was using it as a tag. If there wasn't further evidence of his culpability in the vandalism it's uncertain whether he could be tried or convicted for it, though some prosecutors would certainly try.

It's also uncertain whether he could prevail over you if you stole and registered his design (via trademark, copyright or both). He would have to provide evidence that he had originated the design. If he had none outside of the illegal usage (and I don't see how that would readily translate into usable evidence unless it was something like a picture in a dated police report or something like that). Although one is straightforwardly granted copyrights to one's own works by virtue of being the creator (the issues affecting trademarks are more complicated), asserting these rights without formal registration depends on your ability to negotiate a legal battle (who can forget the Vodka City/Florida Orange Juice Talking Sandwich debacle? Not me!).

Interesting question - if the tagger somehow had evidence that cold busted him for the graffiti but also proved his creation of the mark (pretty hypothetical now but what the hell), could he elect to use that evidence and accept the legal consequences but gaining legally recognized ownership of his intellectual property? I bet there's not a case on the books for that one, but I could be wrong...
posted by nanojath at 11:53 AM on October 9

If I were a tagger (which I'm totally not) I might let it go purposely... I mean, if your line were super successful, and my tag was known in the graffito community, it could be seen as the ultimate victory - thousands of people actually paying money to spread my meme.
posted by nanojath at 11:54 AM on October 9

Nano, as someone who deals with artists (even a few taggers/former taggers in there), their reputation and their "likeness" in the form of a tag usually means a lot, if not everything to them. If there's nothing tracing back to you, physically, you're never going to get recognized for your efforts (criminal or not) and you'll never see one cent.. whereas the OP could possibly be making millions off of a design that you'd been perfecting since you were in middle school. Something that is a lot heavier than "something sick I saw on a stop sign, so I'm gonna take it and run with it because a cat's got your tongue and na-na-na-na-na-na!"

IANAL, but besides the actual tags he's made in public he's probably got an abundance of sketchbooks and other materials where he was honing this particular mark as well as others that he could use to back his case up.. besides the fact that he could likely take a Sharpie and whip out a pretty damn good clone right on the spot. Trying to profit off of this guy is going to bite you in the ass one way or another, even if him coming forward means community service. Hell, they might even have him do a mural or something.

Any graphic designer you hire is likely to botch the thing up some way or another unless you plan on shelling out for a good one, and in that case just use that money to find the original artist and offer him a position as your apparel designer.

I don't even get this question to begin with because it sounds like you were just going to run off with his tag and use that on a bunch of hoodies forever. That would get old, quick. And then what would you do -- go steal some more? Like others said above, the internet is a magical place where you get called out, and quick. One false step and a post on YTWWN (as an example) and your company and your name are down the drain forever. How is that worth it?
posted by june made him a gemini at 2:27 PM on October 9