Are copyrights on graffiti illegal?

Let me first say I believe strongly in copyright, and Intellectual Property (IP) protection in general. I believe an artist's work is their work. In an earlier post I talked a bit about copyright issues on graffiti art.

But what are the boundaries on copyrights when it comes to graffiti in a public access public space? (If you're reading this, you know I run graffitipix.com, a site that sells pictures of graffiti. We are careful to use photographs that we took directly or acquired the rights to.)

I recently had the opportunity to talk with an IP expert, and he said something very interesting - for the most part, graffiti is illegal. That is, tagging the side of a building is illegal without express permission from the building owner, and even then most states and municipalities make it illegal anyway. But here is the interesting part: under US law (and many other jurisdictions), you cannot profit from illegal activity. And as J.D. Lasica of "Freedom To Tinker", points out, it is unclear whether you can copyright an image created illegally.

Most would agree generally that the artist owns the rights on the art, the photographer owns the rights to their own photographs.

I've discussed with this with a government legal expert. It's not at all clear whether you can or would want to claim copyright over an image that you've created illegally.

My opinion, based in part on my own research into copyright law as well as my own personal feelings is that that when a graffiti artist tags a building, they are intentionally putting their work into the public domain. You cannot copyright public access public spaces. If you take a picture of the Statue of Liberty, you own the rights to that photograph.

What do you think? Can you - and would you want to - claim copyright on graffiti if it is illegal? And does that invalidate the copyright?

Molly