This blog has previously examined some of the complex legal issues surrounding graffiti art.  From the public fascination with street artist Banksy to the recent litigation over the destruction of a graffiti art repository at the 5Pointz site in Queens, this genre of art poses unique questions and problems for those who create it, those who own the property where it was created, and those who wish to use images of such works.

A new lawsuit filed earlier this year may serve as an interesting lens through which to view some of these issues.  On January 21, graffiti artist Craig Anthony Miller (also known as CAM) sued real-estate-development company Toll Brothers over allegedly unauthorized commercial use of images of a mural he created in 2009.  The “elephant mural” was a 90-foot high artwork formerly located on Water Street in Brooklyn.  It was taken down in 2013, but according to Miller’s complaint, it is perhaps his most famous work and was once a prominent feature of the Dumbo neighborhood of Brooklyn, frequently serving as the backdrop for videos and photography shoots, among other things.

In recent years, popular interest in graffiti art has prompted developers, including Toll Brothers, to “highlight rather than erase” graffiti even in high-end developments.  According to Miller’s federal complaint (see Case No. 15-cv-322, E.D.N.Y.), Toll Brothers took this trend too far when it began featuring photographs of Miller’s elephant mural in its advertisements for a group of luxury condominiums located on Water Street.  Specifically, he claims that a “very recognizable portion” of the mural was reproduced on Toll Brothers promotional posters displayed in the subway system and on telephone booths and bus stop shelters throughout New York, as well as in advertisements that appeared in the New York Times.  Miller further alleges that, beginning in 2012 when he learned of the unauthorized use, he sought to negotiate with Toll Brothers and even discussed and began work toward possible future projects for the company, but the parties ultimately reached no agreement, and Miller has received no compensation from Toll Brothers to date.  In his complaint, he seeks an injunction preventing further use of the work, as well as monetary damages, costs, and attorneys’ fees.

One report quotes Miller’s lawyer as saying that Miller received permission from the owner of the site where he originally created it.  The same story reports that Miller previously licensed the image to other companies, including Target and Timex; if proven, those facts could help Miller seek damages by providing an indication of what Toll Brothers might have paid him to properly license the work.  (Interestingly, other coverage of the story suggests that Miller created the mural in cooperation with other artists, although the complaint contains no indication that any other artists might have a stake in the suit.)  For now, Miller joins a growing list of graffiti artists who have taken to the courts to assert legal rights in their creations.