It’s not likely news to anyone that graffiti and its amorphous offspring, “street art”, are and for years have been highly marketable aesthetics. While this long standing trend has produced much commercial collaboration with and imitation of graffiti and street artists, it has also led to some contentious use of existing works.
For example, Banksy, a widely recognized but still anonymous British artist is often imitated, if not simply reproduced without permission in an ad or on a product, as seen here:
(Above: stencil by Banksy and t-shirt design by Agui Design. Images and story found at youthoughtwewouldntnotice.com)
Of course, the work of many less famous artists is subject to similar use, like this stenciled work that was picked up for a club flyer. Here’s a t-shirt graphic apparently composed in part from a wall in Milan. Notice that the text in the speech bubble on the t-shirt has been changed to say “copy of copy”. A knowing commentary on their appropriation?
Considering these cases, I’m wondering if and how copyright applies to illegal work. US Code seems to say that graffiti, as an “original work of authorship, fixed in any tangible medium of expression“, has copyright protection. Is work created outside of the law also subject to it’s defense and support? If so, how are questions of fair use dealt with? Since arbitration requires a court, artists would have to appear, revealing their identity and admitting breaking the law. This, as well as the financial burden of such an undertaking, seems to be built in protection for any and all use of illegal creative work.
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A separate but related thought regarding legal graffiti and street art: There may be an assumption by would-be reproducers that the work is illegal or that the artist is anonymous or unaware of copyrights. Here’s an article in the New York Times on that issue—a photographer made a book of images featuring graffiti murals without contacting or crediting the artists. Here’s a similar situation where a photograph of commissioned work by well known artist ESPO is being sold at Crate & Barrell. Just one more!
Yale Law Tech 
Interesting question you pose – definitely a Catch-22 for any artist-criminal who has their work stolen. It seems the big question is not simply whether a work was created under illegal circumstances, but where the artist’s right to anonymity ends, especially when (as in the case of Banksy), the allure of the work, and thus its value, rests on perpetuating this anonymity. I’m curious from a legal standpoint – is it possible for an intermediary to file a claim on behalf of an anonymous artist without compromising their identity? (Is there any precedent for this?)
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