Rewriting the Surface: On Graffiti, the Law, and the Nature of Things

Abstract

The article believes that the legal field needs to reconsider its approach to the surface of things. Using examples from jurisprudence of the United States, the United Kingdom, and the European Union and considering the legal tradition from the Roman Republic to today, the paper inquires why the law has evident problems in dealing with surface-oriented artforms, such as graffiti and postmodern literature. By consulting theorists of the surface, from Hegel over Critical Theory to Postmodernism, it will show that the law is outdated in the sense that it has failed to adapt its understanding of the nature of things. It will furthermore consider how property law and intellectual property law (including copyright) need to be revised in order to bring the law up-to-date with above developments.

1. Introduction

At an introductory class to law that I have been teaching annually in New Haven, I usually ask my students which questions they would consider if their overly enthusiast professor D.R. Lind tagged their car with “Yale rulez.” Their uniform answer is of course whether their professor needs to pay damages, and they are often surprised when I tell them my question would have rather been whether I now own the car. The inquiry is of course provocative, maybe even absurd, but behind it lies the legitimate consideration of whether there is something in the system and thus logic of property law that might force us to at least consider that ownership could have changed. I usually inquire next whether their answer had been different if renowned graffiti artist Banksy had tagged their car, skyrocketing the car’s value. Such a slippery slope of cases can of course be extended: what if the vacuum cleaners Jeff Koons exhibited in 1985 as ready-mades, and which most recently were sold for 11.8 million USD at Christie’s, were originally purchased by the artist with an elapsed credit card and—due to reservation of title—never became the property of Koons? These cases are of course fairly theoretical but are derived from real-live cases at the other end of the slope, such as Wetherbee v. Green (1871),1 where the timber used to manufacture hoops did not belong to the manufacturer. A line can even be drawn to cases in classical Roman law where ownership turned into dispute after a parchment not belonging to the artist was illuminated by letters in pure gold, or the related case that a wooden panel was painted on by a renowned painter, considerably enhancing its commercial value.

The students’ intuitive answer points to a presupposition here that not only informs our common sense, but that has formed the basis of property law for centuries: the surface is accidental, if not irrelevant, and should not be confused with the true nature of things, which alone informs the law. This idea has a long tradition, ranging from Plato’s dichotomy of eîdos and phainómena to Kant’s distinction between the noumenon (‘Ding an sich’) and the phenomenon (‘Erscheinung’), and also found its application to animate objects. The soul–body differentiation has occupied philosophy for centuries and has most clearly manifested in the discussion on beauty: it at times seemed axiomatic that true beauty rests within; the beautiful soul is often entrapped in a not-so-beautiful body (or vice versa, Schiebeler 1780, p. 17), making the accidental conflation of outer and inner beauty a rare, if not religious event, which was responsible also for vicious debates on painting and sculpture. Literary authors enhanced the publicity of these discussions: E.T.A. Hoffmann has commented on this idealist confusion in Berthold the Madman (Hoffmann [1816] 1855), and Franz Kafka later ponders on a determinism of the skin as a person’s representative surface.2 Though phenomenon and surface should not be confused (scholars, in fact, rightfully insist on the distinction), there is a nexus insofar as the surface is the first and foremost medium in which the object presents itself to cognition, while at the same time it is the surface that is considered to hinder our insights into the true nature of things. In line with this presupposition, in Kafka’s The Penal Colony, criminal punishment is exercised as a cruel ritual of tattooing that marks but also penetrates the surface, thereby acknowledging the necessity of reaching the latent essence in punishing, while at the same time reiterating the longstanding conviction that the exterior can be deceiving and that consequently effective protection from deviants and criminals was only achievable by bringing the surface into accord with the (truer) inside. Literature from Petronius’ Satyrica over Nathaniel Hawthorne’s The Scarlet Letter3 to Cormac McCarthy’ Blood Meridian pays tribute to such practices of stigmatization predominant from antiquity (C. Jones 1987; Gustafson 1997) to the late 19th century (Koslofsky 2023). Particularly cruel but effective was the marking or branding of a criminal’s skin, from the fleur de lis in France, to the brandishing of the chest and cheek with capital letters representing the offense, a practice common in the Colonial United States. More moderate practices involved the compulsory marking of a person’s cloth (from the yellow ring badge that marked a Jewish person’s cloth, from the Middle Ages on, to Hitler’s yellow star badge), a practice not essentially different in nature from brandishing, if we understand clothing as the “extension of our skin” (McLuhan 1964, chap. 12), if not our “second skin” (Horn 1968). That clothing necessarily stands in a certain relation to the body as its interior was not a novelty though, but an idea which Hegel, an early thinker of the surface, already pondered on (Hegel [1835] 1975, pp. 742–49).

Michel Foucault highlighted that such metaphysical thinking of profundity has been a common trait of Western culture for centuries—with truth understood as something that lies beyond the surface, and thus, needs to be uncovered, if not excavated.4 Such thought must necessarily disregard the surface as secondary, if not deceiving. It is no surprise that correspondingly, this hierarchical dichotomy has also long pervaded the sciences. Even after the tread spanning from David Hume to the American Pragmatists, Albert Einstein in his Princeton introduction to physics still insisted that science was looking for the truth behind the phenomena (Einstein and Infeld 1938, p. 296), and, here, parallels with the endeavor of psychology to strive below the surface by inquiring in deep-level structures (from Leibniz’ ‘dark fond’ of the soul to Freud’s ‘unconscious’). The classical hermeneutical task—be it in theology, law, literature, or even philosophy—equally strived to discover what was hidden below. As Curtius ([1953] 2013), noted, reading books and reading the world soon shared the common denominator of a true meaning in need of being excavated. Augustine’s proposition to read the world as a ciphered book led Bonaventura to distinguish inner and outer scripture: “duplex est liber unus scilicet scriptus intus qui est Dei aeterna ars et sapientia et alius scriptus foris scilicet mundus sensibilis” (p. 321). Subsequently, Galileo inquired into the cipher the book of the universe was written in, without which “one wanders vainly through a dark labyrinth” (p. 324).

From Cassianus, who added three hidden levels of meaning to the literal meaning of the holy scripture in the 5th century AD (the theory of ‘quatuor sensus scripturae,’ cf. Cassianus [1886] 2004, p. 404), to Chladenius’ application of the hermeneutical method to every text as a ‘hermeneutica profana’ (Chladenius 1742), the common principle that beneath the surface lies a latent truth persisted to be the center of literary hermeneutics, and various attempts to rehabilitate the literal (plain) meaning as an open and overt truth (from Martin Luther to Andy Warhol) proved fruitless over the centuries, both in literature and the sciences (cf. Blumenberg 2022).

Henry James early mocked the idea of profundity in his novel The Figure in a Carpet (1896), and 20th century literature theory has drawn a similar conclusion: If the hermeneutical project meant to uncover a latent truth, the work is inevitably “used up” in the process; hermeneutical readings then were destructive acts; what they “use up”, or at least devaluate, are the surface structures of their objects of inquiry (Iser [1976] 1978; Barthes [1967] 1977; Staiger 1955 and Sontag 1964 center on a different “destruction”). Pragmatism has equally contested the idea of a latent and universal truth as to be derived from a deep reading. A culture of ‘profound’ readings has nevertheless continued until today, more recently mirrored in Frederic Jameson’s “symptomatic readings”, which seek to reveal as truth what “remains unrealized in the surface” (Jameson 1981, p. 48; Best and Marcus 2009, p. 3)

In light of these presumptions weaving through Western thought, it must have been seen as axiomatic that graffiti could not be considered to change the nature of a thing but could only be qualified as a ‘defacing’ in the most literal sense, a violation of the object that might give cause for restitution or damages.

My article will inquire into the reasons why the law has a problem with the surface, and will demonstrate that the law has not adapted its perspective despite multiple possible turning points in history (from Hegel over Early Frankfurt School Critical Theory to Postmodernism), with this omission causing problems in the adjudication of contemporary literature and art. As an outlook, I will furthermore provisionally propose legal changes that could remedy the problem.

Using a comparative approach, examples will be drawn from the United States, the United Kingdom, and the European Union. Despite obvious genetic differences (common-law tradition vs. the Roman-law-based continental European approach), certain presuppositions have pervaded these traditions as common premises, have defined and limited what was possible in categorization and classification (episteme so to say, if one wants to use the Foucauldian term), and, consequently, have prevented the law from reaching an adequate understanding and treatment of the surface.

Continuing my above introductory remarks, Section 2 (following now) will demonstrate that the Roman law was already forced to disregard the surface as legally relevant and will inquire into the reasons for such a limitation.

The subsequent Section 3 will identify three major possible turning points that could have caused the law to revise its stance: first, Hegel’s aesthetics; second, the work of certain thinkers at the fringes of Frankfurt School Critical Theory; and third, Postmodernism. In light of the fact that the law is usually late in adapting to the advancements in other disciplines, the article will focus on the continuities that connect these quite disparate movements, evidencing that despite manifest differences that in particular distinguish Postmodernism from Modernist thought, certain communalities in the revaluation of the surface persisted over nearly a century, which should have given the law more than enough time to revise its understanding of the matter.

Section 4 will then claim that, despite the law more recently having chosen a path that was also beneficial to graffiti artists, it cemented an outdated approach to the surface. It will show that the at first sight benevolent moral rights legislation based on the Berne Convention of 1886 (such as, e.g., The United States Visual Artists Rights Act of 1990 and similar Western Intellectual Property legislation), though having effectively protected graffiti artists, is a two-sided sword, since it is based on outdated premises: perpetuating myths such as the author’s personality residing in the work, even this newer legislation rather points to the past than to the future. The section will furthermore clarify the relation between legal rules and the presumed “nature” of things, and the constraints the latter exalted on the law. Considered will be early 20th century American Pragmatism and late 20th century Poststructuralist thought, as well as the potential that the early Critical Theory already held.

The subsequent Section 5 will inquire into what ways the law is currently at odds with 20th/21st century thought and artistic practice, resulting in fairly inadequate court rulings. Apart from graffiti, postmodern art (from Andy Warhol to Sherrie Levine) and postmodern literature (from William Burroughs to Kenneth Goldsmith) will be considered, as well as art and literature in general.

Section 6 will demonstrate that not only graffiti, but another surface art, namely Hip Hop, poses problems for courts due to law’s outdated premises. It will consider Hip Hop’s practice of sampling, but also the radical intertextuality of genres such as Gangsta Rap and will center on the postmodern version of identity constitution that these surface artforms provide. The purpose of this section will not only be to show that, with Hip Hop, another superficial artform falls victim to the same outdated legal presupposition, but it will also provide insights for a correct legal treatment of graffiti, and hence will also contribute to the proposed revisions to law’s stance that Section 7 will encourage.

In this final Section 7, I will speculate on how the law and, in particular, property law and intellectual property (IP) law, might need to change in order to fully acknowledge the surface. Considered will be provisional amendments to intellectual property legislation (such as moral rights and copyright) but also to the concept and protection of property as such, a question most relevant for the treatment of graffiti. Drawing on examples from slave narrative (from Hanna Crafts and Martin Delany to Toni Morrison), which Section 6 provided, the article will also consider a “vandalism privilege” as a possible consequence not only in the law of intellectual property but also in the law of physical property. My propositions will be rather provisional in this section, since my article mainly aims to bring to attention the legal problem of an outdated approach to the surface and hence, will center on historical developments and possible turning points and not on the revision of the law itself. But my considerations might at least provide an outlook.

2. The Classical Laws of Surface Artifice

Within the above established tradition of thought, it is not surprising that the Roman legal tradition already had a problem with the surface. The issue became particularly apparent when the surface of an object was artificially fashioned. Examples in Roman law were first, the illuminated paper or parchment, second, the painted wooden panel, and third, the mural. At least the first two artforms should have been easily treatable in Roman law, since craftsmanship turning different raw materials into new produce was readily accepted in Roman law as creating a new thing (specificatio), with the consequence of the craftsman becoming the owner of his creation. While one might think turning a wooden plate it into a precious artwork or illuminating a parchment should equally result in a change in the nature of the thing—and consequently of ownership—this expectation is disappointed: painting, ornamenting, and scripture were treated as secondary, sometimes even understood to disappear into the medium used. Based on an axiomatic ‘natural’5 reasoning, the latter was thought to even be the case if the added artifice was executed in pure gold.6

The legal arguments of Roman jurists were complex here, differing considerably in detail between scholars, but had one common presupposition: since surfaces cannot be without the material they confine (rendering the substance the only relevant entity that allows the surface to exist), any ornamentation, such as painting, could only be of secondary relevance: “Sed et id, quod in charta mea scribitur aut in tabula pingitur, statim meum fit: […] sed necesse est ei rei cedi, quod sine illa esse non potest.” (“But what is written on my paper or painted on my board immediately becomes mine. […] it is necessary to yield to that thing, which cannot exist without it”, Dig. 6.1.23.3-4, my translation).

This original argumentation propagated both by Gaius and Julius Paulus, which has later been reiterated by Justinian, (J. Inst. 2.1.34), was often illustrated with a set of analogies in the laws of accessio: first, that of the earth on which a building is built and second, of a river extending the bordering land by adding sediment layer by layer (G. Inst. 2:70; J. Inst. 2.1.33). The metaphysical presumption of the irrelevance of the surface forces Gaius to oppose as “unreasonable”7 the surely not unreasonable argument of other jurists that it must be unjust to consider a painting executed by a renowned artist as being nothing else than an irrelevant addition to the wooden panel.8

It is my claim that the cause for these problems lies in the fact that painting, scripture and ornamentation, as mere surface phenomena, could not easily be integrated into the metaphysical thinking that traditionally informed property law. The hierarchy inherent in this dichotomic thinking is furthered in a later understanding that artifices of the surface even lose their status as substances once they have been added: while at least initially a logic existed that distinguished between the major and the minor and where the minor was only temporally considered non-existent by means of a legal fiction,9 a later passage (treating first, the wooden painting and second, the mural) made clear that surface artifices instead have to be considered to become mere “qualities” of the material object that has been artificed: “Pictura cedit tabule, scriptura charte: sicut qualitas cedit sue substantie […] idem in pictura muri nunquam enim talis pictura trahit substantiam ad se propter suam preualentiam.”10 Though we are not yet at considering aesthetical artifices as mere secondary qualities in the Hobbesian sense, the opposition of substance and quality demonstrates how the old analogy of the building erected on land has lost its guiding character by further flattening the perspective. In consequence, criteria originally debated are brushed away, such as whether the disparate materials could in theory still be extracted for re-use (J. Inst. 2.1.25). The mural, scripture, or painting, as the mere face of the object, as a new surface without substance, simply could not have metaphysical relevance, and, consequently, could not change the legal status of an object (see, e.g., J. Inst. 2.1.29). That such reasoning was a ‘natural’ imperative was reiterated in the 19th century: [A]ccessionem cedere principali, quae in omni jure valet, et in universum exprimit, quam arcta in jure sit cojunctio accessionis cum re principali, a recentioribus scriptoribus his verbis plerumque exprimitur” (Kahle 1827, p. 3).11

One might assume that another debate—the debate between the Proculeian and the Sabinian school, the latter postulating that the essence of a thing consists in its matter, the former following Aristotle in claiming form as being the decisive criterion—could have made a difference here, since the surface is the demarcation line that exhibits an object’s form. That form, however, is not at all understood as a surface phenomenon but instead presumed as idealist, is best demonstrated by the historical scholarly treatment of sculpture, where an object is presumed to be able to exist even without exhibiting a surface: as Michelangelo noted, the statue has always been present inside the granite block, even before its making. In consequence, giving the statue a visible surface only meant “making it apparent” (Panofsky 1939, p. 172; cf. Panofsky 2020). The latter was in fact an argument already raised long before by Gaius in the context of agricultural production,12 and was still imminent in a newer decision where the court had to decide whether a chicken was to be considered as the essence of an egg, or whether chicken and egg were different things indeed.13 It should be noted, however, that the ‘natural’ logic that forced notable early Roman jurists to treat any surface artifice as irrelevant did not mean that compensation was not to be paid to the artist or craftsman (see, e.g., G. Inst. 2.79). Distributary justice, on the contrary, required compensation for the loss of material or labor invested. Such questions of justice, giving rise to certain legal remedies (see G. Inst. 2.77; Jhering 1857, pp. 138–41), however, had to be clearly distinguished from the more ‘natural’ question of ownership, the latter necessarily to be determined by the true nature of things alone.

As I have shown elsewhere (Lind 2024b), accepting such “natural” constraints in law is highly problematic, at least when applied to legal conceptualization, and I will come to this question later in this essay. First, however, I want to concentrate on the issue of the relation of the surface to the nature of things. Though common-law systems are not tied closely to the Roman legal tradition (as, e.g., the continental European system is), the underlying thinking of profundity, as a universal Western axiom that also governs philosophy and the sciences, has not only prevailed in continental European law until today but has equally informed legal thought in the United States and the United Kingdom.

3. A (Post)Modernist Perspective? From Hegel to Kracauer and Beyond

The traditional Western thinking prioritizing profundity must seem outdated today, for two reasons. First, it does not consider the valorization that the surface has received since at least the turn of the last century. Second, it also does not seem to acknowledge the changes in understanding that postmodernity encompasses.

Already in the 19th century, the surface had received increased consideration. The understanding of the phenomenon as useless and deceiving had received some modification with the surface gaining limited epistemological relevance. Though already Leibniz’ disciple Christian Wolff had considered the phenomenon as epistemologically relevant (and subsequently Wolff’s disciple Baumgarten, the latter best-known for the introduction of the term “aesthetics” and its establishment as a branch of philosophy), it is Hegel’s dictum that is usually quoted today in this context:

“The Essence must appear or shine forth. Its shining or reflection in it is the suspension and translation of it to immediacy […]. Essence accordingly is not something beyond or behind appearance, but […] the existence is Appearance (Forth-shining).”

(Hegel [1817] 1975, § 131)14

From Leibniz over Berkeley, Hume, and Kant, though, there were already multiple potential turning points that could have allowed a reconceptualization of the surface. In the 18th century, Diderot in France and Herder in Germany engaged in a revision of our modes of cognition, giving consideration, if not priority, to touch—and thus to the material surface of things (Diderot 1749; Herder 1778; cf. Immerwahr 1978; Zuckert 2019). In England, William Hogarth considered an object that was nothing but surface (Hogarth 1753, pp. 7–11). In the 19th century, Architect Semper even exclaimed when examining the art of the ‘ancient’: “The seemingly secondary, the surface, is the primary” (Semper 1878, p. 246).

Though paving the path for a new thinking of superficiality, such voices were, however, the exception. The 19th century was still tied to a metaphysical thinking that had not yet discarded profundity. The value of the surface had been increased, but it had not yet become the center. This even applied to aforementioned approaches such as Hogarth’s, which were not interested in the essence of things but in form only. When Hogarth devised an intricate method to make the true form of an object visible (Hogarth 1753, pp. 7–11), the surface became the essential question. To understand the form of an object, Hogarth constructed a surface without matter, a surface that consisted of nothing but surface: of an inner and outer surface. As Hogarth resumes, “the oftner we think of objects in this shell-like manner, we shall facilitate and strengthen our conception, […] acquiring thereby a more perfect knowledge of the whole.” (p. 8) Unfortunately, no real revalorization of the surface took place yet: according to Hogarth, such a ‘shell’ could only be constructed from the latent center of the object. Consequently, the surface, though more relevant now, was still merely a medium aiding the reconstruction of an object’s ‘true’ form emanating from within, “because the imagination will naturally enter into the vacant space within this shell, and thereat once, as from a center, view the whole form within. […] Thus the most perfect idea we can possibly acquire of a sphere, is by conceiving an infinite number of straight rays of equal lengths, issuing from the center” (pp. 8–9).

How such dichotomic thinking has prevailed can be demonstrated by an approach from the early 20th century that shares a striking similarity with that of Hogarth’s: cultural sociologist Georg Simmel’s, who proposed a sociological analysis consisting of “drawing numerous structural lines from the ideational center to the visible surface” (Kracauer [1921] 1995a, p. 255).

A metaphysical thinking of latency has long prevailed during the 20th century: What was said of Hegel and his contemporaries is to a certain degree also true for the phenomenological tradition: The phenomenological ‘Wesensschau’15 did indeed start with the surface (or to be precise, with the phenomenon), but this was only the starting point of a movement that was inevitably directed at a higher truth distinct from the surface of things. Centering on the mental capacities, these approaches in fact often continued the tradition of Diderot, who, when prioritizing touch, nevertheless stressed the enhanced mental capacities of the blind to separate the different discernible properties of an object when contemplating its—and by doing so, paralleled the conviction of Baumgarten, that it is the spectator who brings together the object through an act of mental construction. The surface had an ambivalent value even to the ‘Seinsphilosophie’ of Heidegger, who continued Hegel’s balancing act when establishing an ontological difference between “being as what is hidden or withdrawn and being as what is present” (Heidegger [1927] 1982, p. 25).

Such is unfortunate, as only a few decades ago, Friedrich Nietzsche had already laid the groundwork for the irrelevance of the profound, praising the ancient Greeks for their superficiality:

“No, we have got disgusted with this bad taste, this will to truth, to ‘truth at all costs,’ this youthful madness in the love of truth: We are now too experienced, too serious, too joyful, too singed, too profound for that. […] We no longer believe that truth remains truth when the veil is withdrawn from it: We have lived long enough to believe this […]. Oh, those Greeks! They knew how to live: For that purpose, it is necessary to keep bravely to the surface, the fold and the skin; to worship appearance, to believe in forms, tones, and words, in the whole Olympus of appearance! Those Greeks were superficial—from profundity!”

(Nietzsche [1882] 1924, pp. 8–10)16

Oscar Wilde has further disseminated this idea, asking for a philosophy of superficiality in his The Importance of Being Earnest (1895)—a turn that could well have leveled the playing field in other fields as well.

Seeds for a more drastic change that should in fact have warranted the law to correct its perspective were disseminated during the 20th century and were already partly incepted by thinkers at the outer fringes of the Frankfurt school just prior to and during the Institute’s exile at Columbia University—most notably here by Walter Benjamin and Siegfried Kracauer. For the sake of brevity, I will speak of Critical Theory when referring to Benjamin and Kracauer’s take here (as does newer French scholarship on the movement), though both thinkers were rather at the fringes of the Frankfurt School. Despite having close personal ties to the Frankfurt Institute, Kracauer, in particular, often came into conflict with the main protagonists of the institute who aimed at unifying and streamlining the positions of the school’s disciples (cf. Lind 2020a)—Kracauer was once even scolded by Adorno for not being a schooled Marxist and hence, in spirit, not belonging to the Institute (Adorno 1938, p. 321).

Benjamin’s (1935) The Work of Art in the Age of Mechanical Reproduction was first received in France but later exalted relevant effects on postmodern conceptions and has been repeatedly revisited in contemporary legal scholarship. Canonical status as an early manifestation of a postmodern theory of history has been granted to Benjamin’s Theses on the Philosophy of History (Benjamin [1940] 1990).17 More recently, Benjamin’s Arcades Project (‘Passagenwerk’, Benjamin [1982] 1999) has been named one of the earliest and “greatest” precursors of postmodern literature (Goldsmith 2011b, p. 109). Kracauer, in turn, had his main readership in the United States, although Kracauer’s call to turn to the surface of things and to investigate lowbrow superficiality, which he uttered in the late 1920s in a myriad of essays, did not achieve a broad readership in the United States until the early 1960s, when Kracauer propagated a radical “redemption of physical reality” (Kracauer 1960, p. 300). Both thinkers not only conversed intensively with each other (cf. Benjamin 1987) but also share notable common traits in their writings (cf. Hansen 1991; Sieg 2010).

Since Benjamin’s influence on postmodernism has already been extensively investigated (cf. Owens 1980; Wollen [1993] 2008; Crowther 1996), and some implications for the legal field have already been drawn by scholars, I will concentrate on Kracauer in my essay and will reference Benjamin only where needed. It is also my conviction that although Benjamin is highly relevant when it comes to assessing the nature and status of the artwork, Kracauer’s take has more general implications that should have forced a reassessment of the relevance of the surface early on.

Both thinkers start with an irreducible loss that marks modernity: Benjamin proclaimed a “loss of aura” that the industrial age brought forth, inevitably changing the status of the artwork. Kracauer’s earlier take on the issue was related. What inevitably occurs in photography, at least over time, was another irreducible loss: the image is “emptied of life,” what is “left behind” is its “truth content,” what remains is nothing but its superficial “spatial configuration” (Kracauer [1927] 1995b, pp. 53–54). Paradigmatic for such insight are “Illustrated Magazines” here, not by chance the center of many of later postmodern inquires, since they exhibit a clear “indifference toward what the thing means” (Kracauer [1927] 1995b, p. 58).

Kracauer’s investigations into the world’s photographic ‘face’ were not limited to art, however, but had more fundamental implications. His call to consider the surface of things was in fact a double call: to turn to the surface as the only thing that matters and to turn to a superficiality typical for commercial and lowbrow culture as the only means of escaping the limits of a decaying rationality in a world where a double alienation has shattered the subject: alienation of the subject from the material objects of the world and an alienation from one-self, with the coherence of the person being nothing but a “pseudo-coherence of his or her individuality” (p. 51).

That photography and film “cling to the surface of things” (Kracauer [1927] 1995d, p. 75) is understood as radically positive in this context, in fact, redeeming the world of objects and giving the subject its place (Kracauer 1960, p. 300). Accordingly, in his early essays, Kracauer minutely describes the “pure exteriority” not only of social communication and interaction, but also of the person itself and the superficiality of its modes of reception (Kracauer [1925] 1995c). What correlates with such “pure exterior” (p. 183) that shares common traits with Bourdieu’s definition of a “social surface” of the person (Bourdieu 1986, p. 72) is Benjamin’s understanding of “perception” as an “absolute surface” (Benjamin 1977, pp. 6, 32):18 a surface that “refers (deutet) but does not mean (bedeutet).”19 ‘To perceive’, as a distinctive mode of reception, consists here in a reading that “does not lead us beyond the surface” but “is infinite and is not defined by its relation to a depth” (Ross 2020, pp. 92–93).

That Kracauer’s take, at least during its early years, was not apt to provide a reassessment of the legal situation might be explained by the fact that Kracauer’s approach was still rooted in the phenomenological tradition (a particularity Adorno has noted on in a different context), understanding “the surface level” as a means of an “unmediated access to the fundamental substance of the state of things” (Kracauer [1927] 1995d, p. 75)—an idea Kracauer later more radically discarded, leading scholars to speak of Kracauer’s approach as a “second critique of enlightenment” (Levin 1995, p. 19) that preceded that of Horkheimer and Adorno (Horkheimer and Adorno [1947] 2002). Furthermore, the main objects of inquiry of the early Kracauer were social phenomena, following Kracauer’s interest in sociology and his adherence to Georg Simmel’s take on the matter: to “advance from the surface of things to their spiritual/intellectual substrata”, treating the most “inconspicuous surface”, “even simplest phenomenon as symbol” is Kracauer’s summary of Simmel’s method (Kracauer [1921] 1995a, p. 275). Social relations were here considered products of a “latent unconscious” to be uncovered.20

But something had fundamentally changed with Kracauer’s take on phenomenology that distinguished him from this tradition. Kracauer shares with the phenomenal approach that the ‘resistance’ (Scheler) that the material surface of things provides—and that hinders any deeper investigation into the depths of the object21—is seen as radically positive: though ‘truth’ is again not easily accessible (‘verstellt’), this truth is not to be found in the depth but is already in the open (Sieg 2010, p. 14). What hinders discovery, then, is not the surface but the ideologies that structure both representation and our understanding. Nietzsche had already prefigured this thought in his definition of “originality” as something that is apparent but overseen in lack of having been adequately conceptualized (Nietzsche [1882] 1924, p. 207 (Nr. 261)).

The fundamental change Kracauer’s take on phenomenology provided, however, is that the aim is not phenomenological reduction.22 What the “curious realist” Kracauer (Adorno [1965] 1991, p. 159) advocates is the return to the material object not only as the start of the investigation but also as its end (cf. Raulet 2009, p. 130). It must seem paradoxical that Kracauer in his later works propagates not an unmediated but, again, a medial approach to the issue, using photography and film as a superior way of accessing reality. There is a fundamental difference, though, to Hegel’s conviction that the “hard rind of nature” can be better penetrated if the object is depicted in art:23 It is the potential to frame the “raw” image of nature that is the benefit of the medium, not its ordering function. The flattening of objects in Kracauer’s “phenomenology of the little image” (as Adorno [1965] 1991, p. 163 called it) seems to enhance a distracted contemplation—a mode of cognition positively seen by Kracauer and his peers. The mode of reception Kracauer prescribes here in order to “apprehend […] the being of any object” is to “meander dreamingly through the maze of its multiple meanings” (Kracauer 1960, p. 165). That such a mode of reception must ultimately lead to the loss of the subject is an objection that Benjamin already had to face (Raulet 2009, pp. 126–28), but is insofar off the mark in our context, as superficiality is radically appreciated here in the double sense of the word: as a turn to the surface and as a turn to superficiality as a mode of reception.

In brief, Kracauer’s take on superficiality prefigures much of what postmodernism would later bring to the table—and his revaluation of the surface consequently could have informed the law early on how to reconceptualize its understanding of the nature of things.

What has been said for above thinkers at the fringes of the Frankfurt School could easily be continued for the postmodernist movement of the second half of the twentieth century. In terms of consideration of the surface, Postmodernism has most clearly embraced Nietzsche’s call for the disregard of profundity. Though theories differ considerably—and this not only applies to the definition of postmodernity within art (on the contrary, also as a general movement, it is hard to bring it under a common denominator)—postmodern theories nevertheless share several topoi, and the acceptance, if not embracing of superficiality is a recurring characteristic. What has been monitored here is a radical ‘flattening’ in all domains. Andy Warhol, as a representative of a postmodern take of artistic production, is most frequently quoted in this context (from the seminal interview with Gretchen Berg): “If you want to know all about Andy Warhol, just look at the surface: of my paintings and films and me, and there I am. There’s nothing behind it (Berg and Warhol 2005).” In the same interview, Warhol speaks about what a surface reading could consist of, namely only reading the quality of the words.24 Here defining “seeing” as passing his hands over the surface of things, as a kind of “mental braille”, must evoke Diderot’s aforementioned approach but in fact follows Kracauer in understanding the surface as a “cipher” in need to be understood. Another variant of superficiality of a new, “postmodern trans-avantgarde” is characterized by Bonito Oliva ([1993] 2014, p. 262) as “deconcentrated, sliding across the surface of style and of recovered languages.”

There are different explanations for this phenomenon that ranges from depthlessness in the arts to a more fundamental loss of the subject that most clearly manifests in a new, superficial ontology. The loss of a stabilizing center that structuralism still had presupposed to exist has been one of the criticisms postmodernism provided (cf. Derrida [1966] 1980, pp. 278–94), culminating in the claim of the impossibility of a meaning that is not eternally deferred, that is not based on a superficial plane of meaning–creation which can have no profundity, and that instead just operates on a horizontal level, as a system of differences that could only be stabilized by a “transcendental signified”, which could “place a reassuring end to the reference from sign to sign” (Derrida [1974] 1997, p. 49), the latter, however, being an illusion. Intertextual theories have equally rejected any signification that operates beyond the horizontal plane, in consequence equally flattening the perspective: as a network of citations, of horizontal rather than vertical relations (Kristeva [1980] 1986, p. 37), postmodern intertextuality discards the possibility of any reference to a more profound interiority (cf. Nöth 2011). A corresponding criticism has been the “breaking up of the grand Narratives” that, similar to a transcendental signified, could have ordered the world or given meaning to life (Lyotard [1979] 1984, p. 15):

“I will use the term modern to designate any science that legitimates itself with reference to a metadiscourse of this kind making an explicit appeal to some grand narrative, such as the dialectics of Spirit, the hermeneutics of meaning, the emancipation of the rational or working subject, or the creation of wealth […] Simplifying to the extreme, I define postmodern as incredulity toward metanarratives […] The narrative function is losing its functors, its great hero, its great dangers, its great voyages, its great goal”.

(Lyotard [1979] 1984, pp. xxiii–xxiv)

The above is the first aspect where Kracauer and some postmodern theorists meet. While the time between Nietzsche and postmodernism, and, in particular, the time from Husserl to Heidegger, might initially seem like an atavism in terms of its consideration of surface, both Kracauer and Jameson in fact share a common denominator when differentiating between two possible artforms: one that still attempt profundity, and one where such latency is explicitly abandoned. Jameson monitors a new intertextuality within the arts where the (vertical) dimension of signification needs to in fact be considerately marginalized, as opposed to a more traditional art where intertextual references still bear meaning. While Jameson’s example is Andy Warhol’s work Diamond Dust Shoes (1980), which contrary to Van Gogh’s Peasant Shoes “does not really speak to us at all,” thereby evidencing a “new kind of flatness or depthlessness, a new kind of superficiality in the most literal sense” (Jameson 1984, pp. 59–60), Kracauer’s Theory of Film (1960) resorted to an example predating its publication by more than 30 years: Walter Ruttmann’s Berlin (1927). This time jump is not merely coincidental. What Kracauer monitors in Ruttmann’s film as a new and intentional “surface-orientation,” a “formalistic approach” where the “contents threatens to evaporate” (Kracauer 1960, p. 207), is prefigured in a 1927 newspaper article by Kracauer ([1927] 1995b) that distinguishes two forms of photography: First, an older form that (though in vain) aims at profundity (understood here as being able to refer to and by this to conserve a historic event) and where the superficial coherence is “destroyed” (p. 52). Second, a newer, “natural” form that consists of a representation “not permeated by cognition”, where “the surface stays intact” (ibid.). What is sacrificed in this new form of a “go-broke game of history” (p. 62) is “the truth content”; what positively remains is its superficial “spatial configuration” (pp. 53–54).

Though this superficiality typical of the “warehousing of nature” in “industrial society” (p. 61) has an epistemological purpose for Kracauer, it also shares a communality with a later postmodern approach: Kracauer’s surface approach is aimed at a negativity that is fundamentally critical. What ultimately becomes apparent when resting on the surface is the “alienation of ratio” (Levin 1995, p. 17), and such ‘negative negativity’ is not far from Lyotard’s understanding of postmodern art as a practice “that denies itself […] the nostalgia for the unattainable” (Lyotard [1979] 1984, p. 81).

Second, what Kracauer’s “Other Critical Theory”25 has in common with several postmodern theorists is an interest in the surface approach of popular illustrated magazines and their particular “indifference” to meaning (Kracauer [1927] 1995b, p. 58). Baudrillard has commented on a similar, popular surface artifice, namely fashion: “In contradistinction to language, which aims at communication, fashion plays at it, turning it into the goal-less stake of a signification without a message” (Baudrillard [1976] 1993, pp. 87–98, reiterating Benjamin’s idea of a reference without meaning). For Baudrillard, the latter insight also applies to one of the key subjects of my essay, namely graffiti:26 “What had interested me in graffiti was […] this kind of angular, syncopated writing that no longer says anything at all—[…] saying, at the same time, ‘I exist since I’m speaking, I’m doing graffiti, but I’ve no meaning, I’ve no name, I’ve nothing to say, I don’t want to say anything or mean anything, but I’m doing graffiti all the same” (Baudrillard [1976] 1993, pp. 76–83).

The third continuity with postmodern thought is that subjectivity is defined by Kracauer as a matter of the surface, anticipating a relevant aspect of the postmodern criticism of the subject (from Foucault [1971] 1977 and Derrida [1972] 1981 to Butler [1990] 1999). Last, Kracauer’s distrust in ideologies prefigures postmodernism in a fundamental sense: shattering all truths (as ideologies) indeed opened the path to a hermeneutics that discarded the metaphysical question of the nature of things in order to move to the question of the subject in the world (cf. Kracauer 1960, pp. 297–300, 304) and hereby paved the way for a postmodern ontology.

4. From Veritas to VARA: Evolution or Atavism? Intellectual Property Law in a Postmodern Era

The above developments could have prompted the law early to change its understanding of the nature of things in two different regards: First, these developments could have forced the law to change its legal assessment of the artwork in particular and to reconsider its treatment of any signifying social practice in general. Second, on a much more fundamental level, they could have informed the law on how to change the way it conceptualizes the objects of legal relations. Potential changes range here from a rejection of the idea that the nature of things forces the law to a particular legal treatment of an issue,27 to a revision of the underlying values that inform the law (cf. Schlag 1994).

Since the second aspect, namely the implications of postmodern theories on the law in general, opens a rather vast field of inquiry and is already abundantly treated in scholarly literature, I will mainly concentrate on the first question in my essay, and will only pay tribute to the second when deemed necessary.

The main question will hence be whether our current legal treatment of the artifacts of postmodernity—from VARA (the US Visual Artists Rights Act of 1990) to the adjudication of other postmodern forms of superficial art by jurisprudence—can account for the above-mentioned changes in understanding that postmodernism provided.

Without question, graffiti is the first subject area where the law needs to adapt its position; postmodern literature and, in particular, literary sampling, are the second. The call for a revision of our current legal understanding might even extend to more brute forms of plagiarism here, which might in fact be justified by postmodernity’s insights.28 I will furthermore comment on a related, but dogmatically different issue in my essay: Hip Hop, an artform closely related to graffiti culture, is the third area where the law has a problem to come to terms with the postmodern superficiality of the genre.

It might be objected that at least the first problem, namely that the law has been treating graffiti inadequately, might have recently been remedied: in the United States, the Visual Artists Rights Act of 1990, following in the ideological footsteps of the California Art Preservation Act (CAPA) of 1979, has been resorted to by courts in a substantial number of cases of graffiti, from Kent Twitchell v. West Coast General Corp et al. (2008) to Cohen et al. v G&M REALTY L.P. (2018) and Castillo v. G&M Realty (2020), inevitably changing our understanding of the scope of conventional property rights. With VARA being one of the last steps of integrating provisions of the Berne Convention of 1886, a comparably high status of artistic protection might, in general, be expected to be the status quo in the larger part of our world, given that the convention was signed by a total of 181 parties.29

I will, however, claim that on the contrary, VARA (and the corresponding non-US legislation based on the principles of the Berne Convention), though having benefitted many of our contemporary artists, is not only a double-edged sword that detriments postmodern artistic production but needs to be considered an atavism that rather points to the past than to the future. I will particularly claim that the ‘moral rights’30 that have been established in the past not only inhibit legal valorization of the surface but inevitably also fail when postmodern artifacts are adjudicated.

4.1. Unfounded Fundaments or: The Realist Fallacy/What Is the Relation of Law to Things?

The above debates on the surface as topic should have demonstrated that postmodernism did not simply enter a vacuum. Both aspects—the turn to the surface and the critique of the metaphysical project as such—could have early on provided the law with two turning points.

Hegel could have already informed the law here. First, Hegel’s oscillation between center and surface could have provided the law with a certain variability in assessing the nature of things—and consequently on the legal relations governing them. Second, Hegel’s understanding of the artwork as something fundamentally different from other objects of the world—as something that is “for us” (“für uns”), not “as such” (“an sich”)31—could have allowed even the natural law tradition to treat the artwork differently. The trick that sometimes was applied to achieve just results in the case of a canvas painted on by a famous artist—namely to turn the surface into the main thing by claiming that the paint was “heavier” than the canvas, hence making the paint the major and the parchment the minor (and thus irrelevant)—would have been unnecessary here, since the surface-artwork could have simply been understood as the major.

Similar conclusions could have been drawn from the pragmatism that developed in the early 20th century and also entered the legal field via protagonists such as Oliver Wendell Holmes, John Dewey, Hans Vaihinger, and Morris R. Cohen (cf. Lind 2020d, pp. 12–18). The Pragmatists’ understanding of truth being only the most useful error (James [1907] 1975, p. 106; James 1907, p. 151; Vaihinger 1911, p. 143) is nothing but a radical extension of Hegel’s “for us”: not only could the nature of the artwork now be defined from an anthropocentric viewpoint but also the nature of every object, be it natural or artificial, with the only test being that of viability (usefulness). What previously diverged, or could at best correlate, has now become irreducibly congruent: the law and the natural world, both suddenly sharing the common denominator of being merely “for us.” It is evident that this understanding again was not created in a vacuum: On the way to the 20th century, thinkers such as Hume, Kant, and Nietzsche radically questioned the possibility of a discernable nature of things, with Nietzsche most notoriously pointing out the anthropocentric fallacy that has ruled metaphysics in the past (Nietzsche [1873] 1976). The culmination of such an endeavor—the understanding of truth as ‘coherence’ (and thus as relative vis-a-vis a pre-existing system that it is an element of)—has become particularly relevant in the re-conceptualization of the objects of law, as I have pointed out in detail elsewhere (Lind 2020d, pp. 12–18; 2020b).

Legal Positivism had already freed the law from the constraints of higher ethics (God, Nature), a consequence of the enlightened critique of a morality of law by Christian Thomasius. A revision of the nature of things—be it pragmatist or constructivist—later gave grounds for a second autonomy, now liberating the law further from the constraints of the nature of things that restricted legal conceptualization in Roman law. In Roman law, it was held that every legal rule was not arbitrary but limited by the nature of the objects—an understanding that well extended into the 20th century (Kuntze 1856, pp. 89–90; Lind 2020b, pp. 206–8). In context of the Law of the Twelve Table’s treatment of thievery, Gaius, e.g., noted that “the law cannot turn someone who is not a manifest thief into a manifest thief any more than it can turn someone into a thief at all,” thereby restricting law to the true nature of things and concluding that any deviation of the law from the nature of things was only possible by the device of legal fictions (Birks 1986, pp. 83–84). In such a system, it was evident that the property of the painting needed to follow the wooden plate, regardless of how “unjust” such a solution would feel.32 Both pragmatist and constructivist theories put an end to such ‘natural’ constraints. When Lon Fuller considers constructive theft in a 1931 journal article (Fuller 1931), he ponders on the nature of “taking” and wonders: “Could not ‘finding’ mean, in a legal sense, taking?” (Fuller 1967, p. 12). What Fuller propagates here is a merely relative understanding of the nature of things that convention can arbitrarily decide,33 a take fairly congruent with the understanding of scientific truth that Otto Neurath formulated for the sciences (Neurath 1931, p. 403).34 Hans Kelsen, the ‘father of the Austrian constitution’ and, according to Rosco Pound, “unquestionably the leading jurist of the time” (Pound 1934, p. 532), equally inquired in the legitimacy of such legal constraints (Kelsen 1919, p. 632).

In such a revised system, the classical Roman conviction that the law cannot disregard the (fixed) nature of things35—and thus is constrained by metaphysical considerations—has lost its axiomatic status and would have made it possible to make the surface the major and the material the minor. That the law is not constrained by the true nature of things is best shown in the context of the treatment of specification36 by different legal orders today. While France (Art. 570 Code Civil) awards the property of the final product to the owner of the material, Italy (Art. 940 Codice Civile) and Germany (§ 950 BGB) have instead originally opted to award the property to the craftsman (as does the UK). In both legislations, the question is today decided relatively, though, depending on the value of the material and the final product. The latter laws also explicitly specify that painting, printing, engraving, and writing are to be considered as the creation of a new thing, leading to the result that if Banksy had tagged the car in our first example, he would unquestionably have become its owner. Other countries, such as Austria, have opted for a compromise (§ 415 ABGB): both the original owner of the material and the craftsman will become co-owners of the final product. Portugal (Art. 2302 CC) has instead chosen a solution that confuses property law principles with those of tort law, making the decisive criterion for a property change whether the craftsman acted in good faith—a compromise similar to the take of common law jurisprudence but incompatible with its original ‘natural’ reasoning. Though different solutions might have historically been the result of different naturalist traditions here,37 the above-mentioned legislative systems have long cut such historical ties and, while still being informed by tradition, are not determined by these traditions anymore.

Both issues—the question of the nature of things and that of values—were further relativized in Poststructuralism. Not only have values been subjected to radical critique here but also every truth, including the nature of things. Though the (new) truth-criteria of viability (usefulness) and of coherence had already rendered truth as relative during the first half of the 20th century, even such advanced understanding of truth as system-dependent had to be impacted by the insights of postmodernism in the second half of the century: with the loss of a center that postmodernism proclaimed (Derrida [1966] 1980), a radical relativism of our systems of conceptualizing the world had been achieved, which also led to a rejection of the metaphysical endeavor and its replacement by radical forms of ontology, subsequently allowing an even more radical legal relativism. Similar considerations follow from System Theory’s understanding that the law is fundamentally ‘autopoietic,’ which means that the law is not determined by outside constraints such as the nature of things,38 but it alone determines what is relevant (Luhmann 1987b, p. 17; cf. Lind 2025b, p. 437).

4.2. Mechanical Reproduction and the Loss of Aura: From Verity to VARA

The early 20th century could have furthermore provided another impulse to the law, and it is the “Other Critical Theory” formed at the fringes of the Frankfurt Institute of Social Research that could have merited a revision of our legal understanding already early on—a revision that would not have been that foreign to the law since it complemented the call for a consideration of Pragmatism in law. Benjamin had noted the inevitable loss that occurred in our understanding of the artwork in a time when infinite mechanical reproduction was possible, an insight that in fact may have hindered treating the artwork differently from profane objects also in property law. The shift Benjamin postulated from the intrinsic worth of an object (also perceived as its ‘cultic value’) to a mere functional value (the value of ‘exhibiting’ it) consisted furthermore in an equally different valorization of the material artwork: as a mere ‘for us’ in exhibition, the only thing that remained of relevance was the appearance—and thus the material surface that presented itself to the viewer.

Neither VARA nor the intellectual property laws present in most legislations of the world can account for the latter insights—nor can they adequately capture the postmodern criticism that emerged later. Such is unfortunate, since the loss of aura described by Benjamin already opened a crossroads where two directions would have been possible: one that points to the future by providing a mere surface-protection, understanding the artwork as a replaceable commodity, and another that dates back to the past (to idealist presumptions, if not to Platonist convictions), the latter being the path the law has chosen.

While, initially, Intellectual Property law in the US, in the form of copyright, only protected the commercial value of an artwork, later considerations paid respect to other interests of the artist, ultimately leading to the inception of ‘moral rights’39 in IP law. The latter became particularly relevant in a time of increased mechanical reproduction, since both an authors’ commercial and ‘moral’ interests were severely constrained by the increase in reproductive techniques—and Benjamin was not the first to note a challenge here: laws such as the Statute of Anne of 1710 already paid tribute to this problem, and later events such as the ‘Battle of the Booksellers’ brought it to public attention.

The decision to center intellectual property on a creator’s formative innovation, however, was nothing else but an atavism: it was informed by the traditional understanding that in art, not the execution was relevant but the creative invention, consequently making the object of copyright protection not the material execution but the formed “idea”, as the already individuated mental conception.40 This idealist understanding, with connotations dating clearly back to Greek antiquity, was most prominently propagated as the theory of ‘disegno’ by Michelangelo, Vasari and others (cf. Quiviger 2002, pp. 54–55; Barzman 1991, pp. 37–48). Ciaravino explains, “Disegno is the spirit, the idea, the intention, the drawing, the project, the structure […]. It is the work even before it exists; it is the work that already exists. It is the shadow of the image that will spread across the surface and the completed image already before our eyes.”41 Both Fichte and Kant will revisit the dichotomy later when discussing the two different intellectual property rights pertaining to each dimension, the former distinguishing the intellectual ‘form of the idea’ from the ‘physical manuscript’ (Fichte 1793, p. 450), and the latter distinguishing between ‘opera’ (‘action’) and ‘opus’ (‘work’) (Kant 1785, p. 415).42 The hierarchical distinction between ‘work’ as idea and ‘work’ as material execution is still present in Title 17 of the United States Code (§ 101), which states: ”[C]opies are material objects […] in which a work is fixed”,43 and has become a ‘bedrock principle’ of intellectual property legislation in many countries.

What the late 18th and early 19th century (via Kant and Hegel) contributed to this conceptualization was the understanding of the artwork as an emanation of the creator’s spirit and as a relevant medium for the constitution of the idealist subject, adding to the already pre-existing premodern discussion on authorial creativity as a means “to express one-self” (Erasmus [1528] 1908, pp. 78, 122–23; cf. Robert 2024, p. 87). The resulting logic that later informed moral rights legislation was the following: if persons were represented, if not even ‘realized’ in the social sphere by their creations (and needed to do so to constitute as a subject), it was necessary to protect the creators’ personalities by protecting their work. The method of choice here was to attribute moral rights, such as the right of attribution (the right to be named), the right of integrity (effectively preventing false light on the person), and the rights of disclosure44 and withdrawal, the latter two guaranteeing social presence or absence (Rigamonti 2007, pp. 67–122). It was the Berne Convention for the Protection of Literary and Artistic Works of 1886 that most clearly formulated these insights, and though the United States did not join it for more than a century, the VARA act was one of the most recent steps in a sequence of legislations that also integrated the Convention’s understanding of moral rights into U.S. Law.45

It can easily be demonstrated that as a consequence, intellectual property law centers on the personality of author in many legislations, even outside the realm of moral rights: Title 7 of the U.S. Code § 102 not only asks for “original works of authorship” as one of many criteria for copyright, but originality is in fact considered “the bedrock principle of copyright […,] the very premise of copyright law” (Feist v. Rural Telephone Service (1991)). Bridgeman Art Library v. Corel Corp (1999) readily defined originality as the “expression of personality” of the author. Already in Bleistein v. Donaldson Lithographing Company (1903), any act of representing reality has been understood as “the personal reaction of an individual upon nature”. The decision continues:

“Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.”

(pp. 248–49)

The idea of the “work” as the emanation of the creator’s personality also informs the understanding of intellectual property in many legislations, from the US over the UK to continental Europe. Similarly to the definition of originality as the “expression of personality” by Bridgeman Art Library v. Corel Corp. (1999, at para 21), the German Supreme Court recently concluded: “The essence of artistic activity is free creative design, in which impressions and experiences of the artist are brought to direct perception through the medium of a certain formal language; [the] most direct expression of the artist’s individual personality” (BVerfG (2008), p. 40, my translation). The Court of Justice of the European Union summarized this principle as following: “[I]f a subject matter is to be capable of being regarded as original, it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices” (Cofemel v. G-Star 2019, at para 30).

As laudable the invention of this comprehensive set of intellectual property protection has been, as detrimental it was for the valorization of the surface the early 20th century could have entailed. Moral rights legislations, such as VARA, have introduced a central feature in the history of the protection of graffiti and other superficial artforms that at first sight must seem as a new valorization of the surface artifice: they explicitly forbid destruction of the artwork, thereby protecting the physical manifestation, and not only the ‘design’, as the formed idea. That owners of physical property (walls, parchment, artworks) now could not do anymore with their property as they pleased, since they now were constrained by VARA or other comparable moral rights laws, is a relevant change in the conceptualization of the property of physical objects, the latter traditionally being understood as the absolute and unlimited right to do with it what the owner choses. The right to destroy one’s own property was, in fact, considered as the clearest and foremost insignia of the almightiness of a proprietor.46

That despite the latter change in understanding what physical property entails, moral rights legislation such as VARA did not lead to a valorization of the surface, lies in the particularity that the artwork or graffiti as a physical object is only protected in moral rights legislation for the reason of being the medium that ‘represents’ the personalities of its creators in the social sphere. Protecting the physical artwork for its own sake, in short, has never been the ultimate aim of moral rights but is merely a reflex of the ultimate aim to enable and protect the creators’ personalities via their ‘social extensions’, and thus, cannot be understood as a new valorization of the material surface.

It is evident that such understanding of the physical artwork as a representation of its creators (or, in Marshall McLuhan’s words, as an ‘extension of man,’ McLuhan 1964) most clearly demonstrates how law’s thought is still rooted in the old thinking of profundity. As a mere substitutional representation, the artwork is irreducibly secondary to the latent truth it mediated and consequently has no truth in itself. Instead of demystifying the work–creator relation (the latter being the path of “demystification” Benjamin proposed), the original myth was merely replaced in intellectual property law by a new myth that formed the basis of moral rights legislation: the myth of the creator’s personality residing in the work. While Benjamin’s ‘loss of aura’ at least bore the potential to move the focus to the surface of things, and should have done so considering the rejection of “outmoded concepts, such as creativity and genius, eternal value and mystery” by Benjamin (1935, p. 218), what instead was replaced was only the object of mystification, not the mystification itself. Contemporary authors from Franz Kafka47 to T. S. Eliot harshly opposed such myth (“Poetry […] is not the expression of personality, but an escape from personality,” Elliot [1930] 1950, p. 21). Unfortunately, as I have shown elsewhere (Lind 2023), the idealist myth of the personalities of the creators extending to their work is surely one of the key atavisms that still informs jurisprudence until today.

5. The Law at Odds with the Postmodern Condition

The understanding of the surface as secondary, as merely medial, was not only inadequate considering above-described newer insights of the early 20th century. It is even more inadequate considering the nature of postmodern artforms48—if not inadequate considering the postmodern concepts of language, communication, and personality—the latter questioning the ultimate ‘truth’ that moral rights legislation in fact claimed to guarantee. Two particular problems emerge here:

First, postmodern art is said to openly discard profundity—and, in particular, to oppose the idea of the creative process as a divine act that corresponds to the idea of the artist as a ‘genius’ or “second maker” (Anthony Ashley Cooper Earl of Shaftesbury 1710, p. 55). In consequence, values such as originality or innovation were equally discarded, as was the idea that there is something beneath the surface of a work—be it a deeper truth, or even an author’s personality, a principle best formulated by Warhol’s ‘There’s nothing behind it’.

Second, postmodern artforms often more readily oppose property rights: graffiti ignores the rights of physical property owners, while ‘contentclept‘ or ‘vocabularyclept’ postmodern literature quotes and appropriates, if not openly ‘steals,’ thereby challenging traditional intellectual property legislation.

Considering the above, it must seem absurd that graffiti as an artistic practice that developed as part of a movement deliberately opposing property rights, should be protected by intellectual property laws such as copyright and VARA, giving the artists rights of the same nature as the artform characteristically rejects:49 in addition to a protection of the physical artwork, a copyright protection against infringements of their designs was furthermore granted to artists when plagiarized by fashion companies (see e.g., Williams et al. v. Roberto Cavalli (2014); Robbins and Darr v. Oakley (2018); Anasagasti v. American Eagle Outfitters (2014); McGurr v. North Face Apparel (2022)).

The latter cases also demonstrate that the commercial world has usurped graffiti as an artform, rendering street art a valuable commodity in a capitalist system. Graffiti artists such as Banksy have tried to counter this development typical for the relation of capitalism and counter-culture, in the case of Banksy’s Girl with a Balloon first by contractual means,50 then, second, by an unlawful destruction of the work.51 But even in the latter case, the acts of resistance ultimately failed: the destruction of the work by Banksy during an auction at Sotheby’s increased its commercial value from USD 1.4 million to USD 25.4 million (The Washington Post 2021), rendering it an even more precious capitalist commodity. Banksy furthermore attempted to circumvent the problems of US copyright law by registering his designs as trademarks in Europe, giving rise to several legal disputes, some successful, others unsuccessful. In 2020 and 2021, Banksy lost the trademark of his Flower Thrower and his Monkey Sign trademark (also known as Laugh Now). While Laugh Now was a commissioned and thus ‘legal’ mural, the Flower Thrower trademark was more controversial, since it was based on illegal graffiti painted at a garage in Jerusalem, and it was held that a criminal act could not lead to intellectual property rights (Full Colour Black v. Pest Control (2020), p. 8). It was furthermore argued for both artworks that Banksy had publicly stated in a book that “copyright is for losers” (Banksy 2005, p. 2; Full Colour Black v. Pest Control (2020), pp. 3, 6; (2021), pp. 3, 6, 9). Though it was made clear in the decision that the fact that “Banksy has chosen to […] paint graffiti on other people’s property without their permission rather than to paint it on canvases or his own property [and] has also chosen to be very vocal regarding his disdain for intellectual property”52 does not automatically deprive him from intellectual property rights—a decision that would have been different in the US53—the European Intellectual Property Office found Banksy in “bad faith” in both cases since he filed his trademark not “to commercialize goods and carve out a portion of the relevant market, but only to circumvent the law,” in particular, the intellectual property law of the United States (Full Colour Black v. Pest Control (2020), p. 15; (2021), p. 16). The decision, however, was later overruled by the Board of Appeals of the Office (Pest Control v. Full Colour Black (2022)).

Similar, but more complex, is postmodern literature as an artform. Postmodern literature often combines both understandings (the rejection of the author as creator and the rejection of property rights). Practices of automatic writing54 that consisted in cutting up and rearranging one’s own texts were combined with mixing and sampling material of foreign provenience. William Burroughs attributed this technique to Brion Gysin—and cited T. S. Elliot as an early modern precursor (Knickerbocker 1978, p. 3).55 Such intertextual practices are much older, though: medieval epics consisted of a retelling of one and the same story in different forms; Herman Melville plagiarized extensively in Moby Dick (1851) and even reflected on the question of originality in “Hawthorne and his Mosses” (Weinauer 1997), as did Hanna Crafts in The Bondswoman’s Narrative (Crafts 2002).56

Postmodern literature, however, is different from its premodern and modern precursors: while authors such as Elliot still thought that an author’s genius transformed the pre-existing material,57 making art to a certain degree elitist, postmodernity’s rejection, now following Nietzsche’s imperative to be ‘superficial from profundity,’ is first, fundamentally radical, when it comes to the rejection of traditional presupposition as the genius or creative originality, a notion already Benjamin focused on.58 Correspondingly, Foucault noted:

“[T]he writing of our day has freed itself from the necessity of ‘expression’; it only refers to itself […] Thus, the essential basis of this writing is not the exalted emotions related to the act of composition or the insertion of a subject into language. Rather, it is primarily concerned with creating an opening where the writing subject endlessly disappears”.

(Foucault [1969] 1977, p. 116)

Andy Warhol has commented in a similar manner on artmaking, calling himself a “profoundly superficial person” and uttering a fascination (and wish) for machine-like ‘creativity’ that is neither personal nor original.59

Second, postmodern art is deeply populist in consequence—a particularity Gysin reflects on in his poem Minutes to go (1960): “Pick up a book/ any book/ cut it up […] slice down the middle/ dice into sections […] there is no longer a need/ to drum up a season of geniuses […]/ the writing machine/ is for everybody” (Beiles et al. 1960, pp. 4–5).

Applying Gysin’s Method, Burroughs cuts up newspapers articles from Herald Tribune, Life, and Saturday Evening Post (Beiles et al. 1960, pp. 12–19), a technique Warhol also used with film sequences.60 In Blood and Guts in High School (1978/1984), novelist Kathy Acker combines the cut-up technique with a critique of the postmodern subject, rendering “textual piracy” not only an opposition against originality61 (and hence intellectual property) but a political “act of feminist guerrilla warfare” (Hawkins 2004; cf. Muth 2011). An equal pose of resistance against a culture industry ruled by men62 is the appropriation art of post-conceptualist artist Sherrie Levine, once called a “culture vulture,” who declared that she only copies art of “white male artists […] because they have the authority, and one of my intentions is to subvert authority” (McKenna 1996). In contrast to such a de-authorizing gesture, Jonathan Safran Foer literally carved out his book Tree of Codes (2010) from his favorite book,63 a story collection of Polish–Jewish writer Bruno Schulz, who was shot by a Gestapo officer in 1942 on his way home to the Drohobych Ghetto. But while Safran Foer, himself a child of holocaust survivors, intentionally created a new story by his respectful and appreciative reductions of Schulz’ work, a relevant part of appropriation literature, such as Kenneth Goldsmith’s experiments in Traffic (2008), are aimed at reducing authorial creativity to an absolute minimum (Goldsmith 2011b, p. 118), effectively marginalizing the difference between human-created material and the products of generative AI.

The pertinent legal questions concerning these postmodern artforms are evident: can an artistic practice that opposes the idealist conception of the subject and its relation to the work (instead presupposing the absence of the person, of an ideal content, and of a higher truth), be grasped within a legal framework that presumes the complete contrary, that in fact considers, ‘originality’ “the bedrock principle of copyright” and “the very premise of copyright law” (Feist Publications, Inc. v. Rural Telephone Service 1991, p. 347),64 presupposing the creator’s personality emanating from the work? Might the constitutional guarantee of the freedom of art, which in many countries is not merely seen as a part of the freedom of speech, but as a right of its own (cf. Lind 2024c, p. 13; 2024d, p. 178), not instead require that the law accepts the changes in artistic practice that postmodernity encompassed—and that it also reacts accordingly in legislation and jurisprudence?65 Or does not the law at least need to accept that originality is impossible and thus cannot be demanded (based on a principle that weaves through our legal tradition: “impossibilium nulla est obligatio,” Dig. 50. 17. 185)? In the latter line of thought, an author has more recently justified her blatant plagiarism with the defense that there was no originality anymore and hence, could not be expected from her (Kulish 2010, p. 4).

That originality is often “accidental,” since we are unconsciously in a long line of “reapers of antiquity” has already been noted by Edward Young (Young [1759] 1918, pp. 8–9); the most radical consequences of this insight, however, have not been formulated until postmodernism entered the stage.

The general conclusions of postmodernism that can be drawn for the legal sector, however, are far more fundamental, and they might not only force the law to change its treatment of postmodern artistic practices but could require more general revisions that have effects on the treatment of all communication (be it postmodern, or not). Postmodern theory might in fact force the law to completely change the presuppositions of its field, including its own center and structure.

There is already abundant scholarly literature on how to revise the legal field under postmodern insights that range from an abandonment of legal hermeneutics in light of an impossibility of a fixed meaning of a text or case (cf. Fish 1982, pp. 201–16; Balkin 1992) over the application of deconstruction as a method in legal theory (cf. Binder and Weisberg 2000, pp. 378–461) to a critical assessment and revision of the legal subject (cf. Boyle 1991; Wicke 1992).66

I will therefore instead focus on a question more pertinent for the topic of this essay: whether postmodernity’s insights require revising our concept of intellectual property as such, as they might require a revision of the concept of property in general, since postmodern art, if really committed to postmodern insights, does not merely choose non-original practices, as it does not merely choose to negate the author, but simply does not have a choice. The impossibility of originality, of a communication that is anything but quotation and an identity that is stable and not an appropriation, are fundamentals premises of postmodern theory that must expose our idealist understanding both of art and property law to be based on incorrect assumptions.

That “all writing is in fact cut-ups […] a collage of words read heard overheard” (Burroughs 1978, p. 32); that “any text is constructed as a mosaic of quotations; any text is the absorption and transformation of another” (Kristeva [1980] 1986, p. 37, cf. Lind 2025b) is not only an insight that might force the law to re-assess its treatment of art, asking for the “death of the author” (as in Barthes’ seminal essay).67 Instead, all textual phenomena are put in question—if not of the world as such—since our access to the world is irreducibly textual (“Il n’y a pas de hors-texte”, Derrida [1974] 1997, p. 158).68 Though the author has more recently risen from the deathbed (cf. Burke 1992; Simion 1996 on the “return of the author”), contemporary poet Kenneth Goldsmith still calls for an “uncreative writing” and propagated Walter Benjamin’s Arcades Project as the “greatest book” of the subject matter (Goldsmith 2011b, p. 109). Others have called Benjamin’s work “a paradigm for the poetry of ‘unoriginal genius’ to come” (Perloff 2010, p. 23) written by a “master of appropriation” (p. 149). In the same line of thought, Marcus Boon has opposed the myth that a relevant distinction “between original and copy” can be made and that original creation is possible (Boon 2010).

While poststructuralism radically questions the possibility of originality independent of technological innovation, figures such as Perloff and Goldsmith see the new ‘demand’ instead rooted in the digital revolution. With the Romantic genius being outdated, the concept of a new “unoriginal genius” of the digital era would need to “center around one’s mastery of information and its dissemination”, making today’s genius “[…] more a programmer […] executing and maintaining a […] machine:”

“With an unprecedented amount of available text, our problem is not needing to write more of it; instead, we must learn to negotiate the vast quantity that exists. How I make my way through this thicket of information—how I manage it, parse it, organize and distribute it—is what distinguishes my writing from yours.”

(Goldsmith 2011b, p. 1)

According to Goldsmith, these innovations offer the artist a “choice” between modern and postmodern forms.69 From a postmodern perspective, the idea of such a ‘choice’ between original and unoriginal art must be an illusion, though. It is an interesting, if not an inevitable irony here that both in the writings of Goldsmith and Perloff, it is hard to discern who appropriated whom,70 while at the same time both authors criticize others for plagiarizing.71 It is equally ironic that artists engaging in graffiti as the paradigmatic anti-property-art nevertheless sued others for an infringement of their tags and designs as their intellectual property.72

There is unfortunately no evidence that jurisprudence has adopted postmodernism’s insights when it comes to the adjudication of surface artifice, nor have the outdated presuppositions of moral rights legislation—or of property law—been discarded. The contrary seems to be the case: what we can monitor is both a strengthening of moral rights legislation all over the world, and a growing restriction of faire-use exceptions, the latter effectively constraining postmodern intertextual practices.73 The legal attempts to come to terms with postmodern art are furthermore contradictory in themselves, since they use idealist premises to grasp a practice to which not only truth has become irrelevant, but that rejects the artist–creator as center and foundation. It is a sad irony that in a time of a decline of meaning, courts granted some postmodern artists the right to appropriate based on whether the re-use was “original”74 or “transformative”, the latter defined as to “alter the first with new expression, meaning, or message” (Cariou v Prince (2011) at para 349),75 or that courts even have endowed postmodern artists with copyrights for their appropriations based on their perceived originality,76 thereby, again applying incompatible principles to postmodern artistic practice. Concentrating on a “modern” concept of the artwork, not only postmodern insights are ignored here, though, but also the classical discussion on the legitimacy of imitation and re-use (Horatio, Seneca, Quintilian).

Conversely, courts have repeatedly insisted that intellectual property protection cannot be granted for works created by mechanical processes, since copyright requires “a minimum of personal authorial creativity” as an “expression of personality”, effectively excluding methods such as “random selection;”77 hence evidencing that, contrary to Gysin’s dictum, the “writing machine is not for everybody,” at least not if aimed at copyright or moral rights. The latter, however, is rather theoretical, since the mechanical techniques from Gysin to Goldsmith might well qualify for copyright protection, as they are hardly thinkable without a minimum of artistic intervention;78 they might not be allowed without the permission of the ‘original’ creator(s), though, since they are most probably not covered by the fair-use exemption.

Three court cases can evidence how antiquated and thus inadequate premises were forcefully applied to postmodern artforms: in the 2011 decision Cariou v Prince, the court rejected a painter’s right to appropriate (as fair use) based on the fact that the artist had proclaimed that he was not “trying to create anything with a new meaning or message” and “that he doesn’t ‘really have a message’ he attempts to communicate when making art.”79 Fair use was equally denied to Andy Warhol’s colored silkscreen version of a black-and-white photo of pop artist Prince in 2021 (Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith), with the Supreme Court upholding the latter decision in 2023.80 For an earlier case, it has been argued that Jeff Koons had only lost because an outdated model of authorial originalism was applied to his sculpture String of Puppies (Rogers v Koons (1992)).81 Other jurisdictions have used similar criteria in their rulings.82

Times may be changing, though. The European Union has introduced a mandate to regard pastiche as free use (Art. 5 Ill lit. k EU Directive 2001/29). Still unclear is whether the freedom to create a ‘pastiche’ will be interpreted in the old tradition of requiring a different message or to comment critically on the original work, and how this will change the adjudication of sampling. The question is currently the subject of an action pending before the Court of Justice of the European Union.83 In general, there is at least a declining relevance of originality in many countries insofar as the threshold of originality has been set very low by jurisprudence, requiring only “some minimal degree of creativity […,] some creative spark, ‘no matter how crude, humble or obvious it might be’” (Feist Publications v. Rural Telephone Service (1991); see also: Star Athletica, LLC v. Varsity Brands, Inc. (2017)).84 The United Kingdom has integrated a similar provision as the European Union, condoning pastiche (Part I Chapter III General Section 30A of the British Copyright, Designs and Patents Act). In application of this provision, however, the more recent Shazam Productions Ltd. v Only Fools the Dining Experience Ltd. et al. (2022)) still resorted to the traditional criteria when criticizing that “there is no expression of political view or any attempt to engage in an artistic dialogue or aesthetic criticism of [the original] specifically or […] about comedy or television or popular culture generally” (at para 196).

At least copyright law—in contrast to patent law—can account for some features of postmodernity, since originality does not require novelty but only independent creation. As Sheldon v. Metro-Goldwyn Pictures Corporation shows, the question is not of practical relevance, though, but rather hypothetical.85 Furthermore, the ‘independent creation doctrine’ is questionable for other reasons (see Buccafusco 2023).

Possible solutions proposed in the past have neither been continued in jurisprudence, nor in legislation, though the fair-use exception could well be modified to comprise the matter (see Leval 1990, 1994; Moskowitz 2015).86 Other suggestions (such as to grant compulsory licenses for appropriation) have been criticized as being impractical or as being too radical (such as the idea to abandon copyright completely, cf. Lessig 2008).

6. From Tagging to Bragging: Hip-Hop Culture and the Legal Vicissitudes of Autofictionality

Graffiti is not the only postmodern street art where the superficiality of the artform creates problems for jurisprudence. Similar problems apply to Hip Hop as a social and artistic practice, that, as I intend to show, is particularly surface-oriented. Though the view that graffiti is an integral part of Hip Hop culture has been contested, Hip Hop and graffiti are often regarded as part of the same subculture, being comparable social practices that are executed by the same protagonists, or by protagonists sharing the same social and ethnic status and having similar or identical motivations and aims. This is not the only communality, though. Hip Hop is in fact a practice that is also fundamentally postmodern. From our legal perspective, two aspects are particularly noteworthy here: first, Hip Hop’s radical intertextuality that is realized both in terms of its musical material and its lyrics and second, the superficiality of its performances, which serve as the surface for the construction of individual and collective identities.

6.1. The Intertextual Superficiality of Rap

Already since its early beginnings, Hip Hop has been applying postmodern cut-up-techniques in the form of musical sampling, openly mixing and thereby appropriating foreign sources.87 The musical intertextuality of Hip Hop renders it radically surface-oriented in the sense of referencing only on a horizontal plane, consequently making its references devoid of any latent meaning. Along the way, both property rights and the classical model of artistic originality were contested.

That Hip Hop, like graffiti, often intentionally breaks the law, and, in particular, intellectual property laws, has been understood as a particular means of empowerment here, with persons experiencing poverty or disenfranchisement having no other choice than to borrow or steal from the hegemonial culture. Such idea of a “borrowing privilege” of Black culture (Gates 2002b, p. 18) already manifested in early slave narrative and here ranges from stealing physical property to thieving language and culture from the enslaver, two subversive practices justified with the argument that enslaved persons could neither acquire property by labor (since the latter was owed to the master)88 but only by either “leave of the master, or by theft” (Wood 2015, p. 54), nor were they often allowed to learn to read or write. In Martin Delany’s Blake or The Huts of America (1859–1861), the “fourth novel written by a Black American,” stealing from the enslaver is “rationalized in terms derived from a labor theory of value” (Gilroy 1993, pp. 27–28). In a similar manner, in Hannah Crafts’ The Bondswoman’s narrative (1861), “the first novel written by a female fugitive slave” (Gates 2002a), the novel’s protagonist, since prohibited by the law from learning to read, illegally acquires these skills, and the author Crafts continued such ‘stealing’ by extensively plagiarizing from her enslaver’s library while writing the novel. Contemporary scholarship has equally pointed out that the Black diaspora has had a strained relation with property rights from the beginning: from the early times of slavery, it has not only been debated whether the ‘slave’ was person or property, and whether enslaved persons could themselves hold property.89 The property logic of accession that binds the enslaved person (as the minor) to the plantation (as the major), though being incorrect,90 has furthermore persisted as a micro-narrative in the collective consciousness, leading to a reflection on what it means for a freed Black person “to be placed”, a question that still weaves through Toni Morrison’s novel Beloved (1987). Hip Hop is seen as rooted in this Black history, as an act of empowerment where the underdog steals from a hegemonial music industry that is controlled by white protagonists (Rose 1994, p. 73). Though courts early intervened against illegal sampling, and very effectively forced commercial artists to receive copyright clearance, the ‘wild days’ of Hip Hop were characterized by such intellectual property infringements, with the works openly “challeng[ing] the institutional apparatuses that define property” (Rose 1994, p. 125). Rapper Biz Markie most notoriously commented on this practice when calling his 1993 album (that immediately followed a lawsuit for copyright infringement) All Samples Cleared. In 2005, dealing with the N.W.A. song 100 Miles and Runnin’, the U.S. federal appeals court renewed the understanding that even smallest “snippets” of music must be licensed (Bridgeport Music v. Dimension Films (2005)).91 The United Kingdom holds similar standards (Ludlow Music Inc v. Robbie Williams (2001)). The practice of sampling, with or without license, however, has nevertheless continued.

That Rap grew out of a particularly strained relation with property laws is not only noteworthy because of its communalities with graffiti. To present the borrowed or stolen devoid of its original context (qua meaning) is part of a culture of superficial intertextuality where everything is only servant to form, and where the idea of a deeper meaning is radically rejected. The explanatory narrative of appropriation as a means of empowerment of persons experiencing poverty or disenfranchisement, hence, only centers on one of the reasons for rap’s “rhyming and stealing”, and this brings me to a more extensive analysis of the second intertextual aspect of Rap as a subgenre of Hip Hop: not only is slave narrative of particular superficiality in terms of its intertextual nodes, but so is postmodern literature in general, with Rap lyrics most clearly demonstrating the premises of a postmodern practice.

Rap is not only musically superficial in the sense that it is ‘autopoietic’92—with its intertextual constituents (regardless of borrowed or stolen) only serving form (as surface). Rap, furthermore, openly quotes and appropriates lyrics of other Rap songs, often in order to challenge or even to outperform them in a competitive game of counterbidding. In particular, the personas and propositional content of Gangsta-Rap lyrics are highly artificial, and are in fact restricted to stock characters with stock characteristics and a stereotypical narrative, while the content (including the wording) often only serves form.93 Frequently, there is only a shallow hermeneutical dimension to the lyrics, no secret is to be discovered, and no real message communicated: The performances of Rap are communicative ‘pretense’ in the most literal sense.94

Consequently, Rap has been called “the postmodern version of an African American vernacular tradition” (Gates 2011, p. xxv), consisting in the “rhetorical game” of “signifying in a postmodern way” (p. xxii).95

What Rap tracks lack in profundity is compensated by their social function: Rap’s primary aim is not to convey a message. Its culture of boasting, flexing and dissing instead serves as a means of identity constitution and social empowerment.96 Speech-act theory has stressed that speaking is doing. It is a particularity of Rap that content (and thus the locutionary act) is particularly secondary, while the illocutionary act needs to be considered as primary, ultimately serving very profane perlocutionary aims (such as empowerment, status, etc.).

6.2. Personal Identity as Pastiche

It must at first seem contradictory that Rap is said to serve identity constitution, thereby reiterating the old referential model, while at the same time, as a postmodern artform, it should be merely superficial and hence reject such idealist convictions. Rap, however, is fundamentally postmodern in the sense that above contradictions are part of a postmodern understanding of the subject as surface. As I elaborate more detailed elsewhere,97 from Foucault ([1971] 1977) and Derrida ([1972] 1981) to Butler ([1990] 1999), identities have been described by postmodern thinkers as the opposite of being stable, and in no way intrinsic. Stuart Hall has summarized these insights when defining postmodern identities as “fragmented and fractured, never singular but multiply constructed across different, often intersecting and antagonistic discourses, practices and positions, […] constantly in the process of change and transformation” (Hall 1996, p. 1), being nothing else but “points of temporary attachments” to subject positions constructed by discursive practices (p. 6), which “produce” the “self as an object in the world” (p. 13).

Rap represents these postmodern characteristics paradigmatically: its model of the person is as intertextual as the postmodern model of the text, with personality being nothing but a surface-practice that negates any possibility of profundity, and that is at minimum hybrid, most regularly pluralistic and not seldom contradictory. The postmodern identity that also manifests in Rap is irreducibly an “identity-collage” (Menrath 2001, p. 99), a pastiche, and its aim is both to create and to re-affirm the fragmentary identities created.98

The transient identities created by Rap by ways of “self-performances”, which could well be called a second skin, are in fact superficial in a double sense: they are superficial in the sense of being radically intertextual (if not autopoietic), and they only exist on the surface as surface. The toolkit of Rap culture that creates these identities is multi-medial here, and its means have multiplied with the digital turn, more and more radically subverting reality (a parallel to Baudrillard that is surely not coincidental). From real-life performances that range from clothing and language that both the actors and the recipients in the Rap game use, over Rap Battles and social media posts that Rap protagonists readily employ not only to disseminate their songs, but also to flex and diss, to commercial videos that fulfill highest production standards, the identities construed are not only transitory and contradictory, but the traditional distinction between self and role, between pretense and truth is readily dissolved. That “the theatre of Rap does not distinguish between self and role, between seriousness and play,” has unsurprisingly been an often-noted insight here (Klein and Friedrich 2003, p. 142). Such an insight is particularly relevant for Rap as a part of the “Black diaspora”, the latter said not to have created stable identities from the beginning (Gilroy 1993), thus being postmodern avant-le-lettre.99

Apart from the ‘decentered’ nature of identities,100 it is particularly the performativity and ‘depthlessness’ of subjectivation—both genealogically and semiotically—that is relevant for our purposes. As Judith Butler remarked, “there is no […] identity behind the expressions […]; identity is performatively constituted by the very ‘expressions’ that are said to be its results” (Butler [1990] 1999, p. 33). That the law tends to ignore such insight is insofar ironic, as the law is the institution that is said to produce the subject (Butler [1990] 1999, 1993).101

Above particularities of Rap as a superficial postmodern practice of identity constitution have caused severe problems in jurisprudence. Until today, courts are unsettled, if not mislead, by Rap’s bragging, flexing, and dissing, in two different ways:

First, courts often neglect Rap’s superficial nature when treating Rap lyrics as assertory speech-acts, as carrying a message or a more latent truth, thereby gaining “probative value” as evidence by giving access to reality or to another ‘truth’ about their creator as a legal subject. As I have analyzed elsewhere (Lind 2020c), the misunderstanding here is either that Rap tracks are readily read as depictions of real events, ignoring the mere intertextual (qua superficial)102 nature of these tracks, now allowing the material to be used in criminal trials as depictions of reality, if not as confessions. Or they are understood as symptoms that make the ‘true’ character of a defendant manifest. Sometimes, Rap lyrics are even read as serious criminal threats themselves (directed at opponents in the Rap game), the latter particularly relevant in ‘diss tracks.’ In the latter cases, rappers have been sanctioned for slander or libel (see Lind 2020c) and, in rare cases, even convicted of “terrorist threat in the first degree” (e.g., Jones v. State (2002)). For prosecutors in particular, rap lyrics seem to be an especially fruitful source of evidence, and unsurprisingly, law enforcement officials are carefully instructed not to overlook this opportunity. The statement “[p]erhaps the most crucial element of a successful prosecution is introducing the jury to the real defendant” can be found in a 2004 manual of the American Prosecutors Research Institute titled Prosecuting Gang Cases: What Local Prosecutors Need to Know (Jackson 2004, p. 19). The manual continues: “Through […] notes, and even music lyrics, prosecutors can invade and exploit the defendant’s true personality. Donald Lyddane’s Understanding Gangs and Gang Mentality: Acquiring Evidence of Gang Conspiracy (Lyddane 2006, p. 1) includes a similar passage: “In today’s society many gang members compose and put their true-life experiences into lyrical form […]. Law enforcement officials must remain mindful of […] the opportunities to obtain inculpatory evidence in gang related investigations and cases.”

As I have demonstrated in a recent German publication (Lind 2022a), the practice to misread such supposed literary “evidence” can be traced back as far back as the Oscar Wilde trials. While the idea that one can deduce a person’s character from the texts they write (US v. Skinner (2014)) or read (US v. Gise (1979)) has ultimately been rejected, there is still today a large corpus of criminal trials where Rap lyrics have been used to ‘introduce’ the ‘true defendant’ to the jury by providing proof of knowledge, motive, or intent, or even have been read as confessions of the crime depicted in their lyrics. For the United States, a collaboration between the University of Virginia and the University of Georgia has identified more than 500 court cases that fit the description (Nielson and Dennis 2019; Lutes et al. 2019). In the UK, the numbers are lower but constantly rising (cf. Lind 2022a; Owusu-Bempah 2022); the University of Manchester has compiled a comparable list here that highly warrants consideration (Quinn et al. 2024; Quinn 2024).

Second, courts in particular have problems to come to terms with the ambivalent, if not contradictory presentation of the lyrical persona in Rap, its insistence on ‘realness’ or ‘authenticity’ that intentionally blurs the distinction between author and persona, while at the same time evidently engaging in fictional role-play.103 The paradox here is that rappers insist on authenticity and on the ‘truth’ of their tracks, while they equally insist that what is said should not be taken at face value, in particular not in the sense of referring to events in their life (see Lind 2020c, p. 127; 2025a, pp. 401–4). What manifests in the legal treatment of Rap here is a general problem of courts to deal with auto-fictional forms of literature that challenge the law by rejecting the distinction between real and fictional. While only few court cases yet concerned ‘high’ literature,104 popular forms (such as Rap) have frequently been the object of inadequate rulings. Courts particularly have problems with the concept of identity as a question of postmodern superficiality when dealing with practices of the constitution of single or collective identities that are unoriginal, transient, if not contradictory.

The current demand to accept superficiality as the axiomatic premise of postmodern culture yet escaped the law particularly in this area of jurisprudence. While the United Kingdom has not yet shown any tendencies to reverse this court practice, there have been laudable legislative endeavors in the United States (such as the Federal Restoring Artistic Protection Act of 2022 (Congress Bill H.R.8531) and comparable state legislation).105 The latter is of particular importance, since even newer jurisprudence has fallen back into old habits (e.g., Montague v. State (2020)). These latter revisions however, still often tend to (mis-)understand the problem not as a matter of inadequacy (i.e., a complete lack of evidentiary value of these artforms), but only of (in)admissibility:106 Instead of denying the probative value of Rap lyrics and thereby paying respect to the superficial nature of these popular forms, the aforementioned laws often position themselves within a practice of limitation that is based on the rule of “unfair prejudice,” where factual evidence, though being true, is excluded because it is not directly connected to the particular crime being tried.107 Such legislative efforts often only continue prior court decisions pondering on the prejudice criterium, such as State v. Skinner (2014), which also did not eliminate the idealist myth of the personality of the author from the equation, but only aimed at excluding unfair prejudice.

More recent European jurisprudence has sought to escape this established tradition, accepting that in Hip Hop content usually only serves form (AG Tiergarten (2013), p. 903), and thus, can neither be of any evidentiary value, nor be a criminal act in itself (such as a criminal threat or an insult). Though being benevolent, these decisions nevertheless still struggle to discard the established idea of artists presenting a message, with this message, if not being critical, at least conveying the artist’s personality through the medium used (cf. BVerfG (2008), p. 40; Cofemel v. G-Star (2019), at para 30).

7. Only Late or Deliberately Reactionary? On the Present and Future of Law’s Stance (Conclusions and Outlook)

Considering the ubiquity of postmodernist thought and art, it is a legitimate question why the law has not yet adapted its conceptualizations. One reason might be that the law is usually late in reacting to change. But after sixty years of poststructuralism, and roughly a century after Kracauer and Benjamin’s turn to the surface, this explanation might not be convincing anymore. While the law evidently has a problem with surface-oriented forms, the fact that courts have at least partly started to accept postmodern artforms as to be treated differently from modern art, while at the same time refraining from revising their general stance (meaning towards what a text is, be it profane, legal, or literary;108 what being ‘factual’ means, etc.), evidences that the reasons go deeper than a mere lack of understanding of postmodern artifacts: it seems that the law is not yet ready to discard several of its axiomatic principles that were criticized by postmodernism, such as a thinking of profundity, the search for truth, and the axiom that the truth can be ascertained, that ambivalences can be cleared up. These principles provide the lynchpin of the conviction of the law that things have a discernable nature and that situations can be fixed in order to be decided. In particular, the law’s model of the person (the legal subject), as one of the pivots of all areas of the law, seems immune to postmodern criticism.109

As a consequence, the law still abounds in a number of assumptions that are hard to uphold. Some of law’s outdated premises could be called legal errors, others deliberate fictions—such as the fiction of contemporary constitutional law that a text can have a discernable meaning, a meaning that might even be historical (cf. Balkin 2016; Lind 2022b, pp. 257–78), or the fiction in contemporary criminal law that human beings possess free agency and thus are self-determined, the latter being an assumption not only incompatible with postmodern conceptions but one that also readily ignores newer insights of the neurosciences (cf. Alces 2008).

Scholars have at least started to question (again) what ‘intellectual property’ as a concept means, and that we might be wrong in talking about ‘property’ in the ‘traditional’110 sense here (Lemley 2005a, p. 1032; 2005b; Stallman 2006; Lemley 2015). Such warnings not to equate intellectual property with physical property started early (Hayek 1948, p. 114), but it seems the analogy has proven all too suggestive, as Judge Frank Easterbrook’s verdict on patent law illustrates:

“Patents give a right to exclude, just as the law of trespass does with real property. Intellectual property is intangible, but the right to exclude is no different in principle from General Motors’ right to exclude Ford from using its assembly line”.

(Easterbrook 1990, p. 109)111

It has also more recently been considered how our understanding of physical property could change in a postmodern era (Edgeworth 1988). These propositions, however, are yet far from establishing a comprehensively revised system, and most are far from even being considered by jurisprudence.

7.1. Post-(Intellectual) Property?

For our purposes, it might be helpful to bring above considerations together—and at least to provisionally ask how our insights might require rethinking the legal treatment of graffiti in particular, and of property law in general (be it of intellectual or physical nature).

Despite the kinship of graffiti and Rap as related practices within a postmodern culture of superficiality, in current criminal jurisprudence, there are relevant differences in the treatment of both artforms: Rappers are often found to be sentenced for committing violent crimes, whereas graffiti’s tagging usually only qualifies as a misdemeanor. Territorial differences, however, exist. In continental Europe, both forms are more aligned when it comes to punishment: Rap is mainly present as a misdemeanor here, with Rap’s bragging and dissing often only giving rise to slander and libel trials, or as criminal proceedings enforcing Harmful-to-Minors laws.112 The United Kingdom, in contrast, has increasingly penalized graffiti, convicting sprayer collectives as “gangs” for “conspiracy to commit criminal damage.”113 But as the above should have shown, the nexus of both artforms and their legal problems runs much deeper, being rooted in a postmodern culture of superficiality. Furthermore, African-American performative art, from its inception on, is to be seen as the first and foremost means of empowerment of persons experiencing poverty (“The body […] was the only […] capital we had; we have worked ourselves as the canvasses of representation”, Hall 1993, p. 109). Graffiti could have a similar justification as the means of “inscribing identities on public property” (Rose 1994, p. 37)—now rendering public or third-party property the sprayers’ ‘second skin’—as it might fulfill relevant functions as a means of social criticism (including protest) that is not unlike the “voice of the street” Hip Hop at times claims to provide (Lind 2025a).

That a graffiti artist such as Banksy might in fact have acquired the property of the car that he tagged if the car’s value had been considerably increased is hence only a minor question—and, as I have pointed out above, would not be difficult to legitimize even within non-postmodern legal thought. The major question, instead, is how property law (be it physical or intellectual) needs to be reconceptualized in order to be in line with a postmodern understanding of both the work and the subject.

At first sight, the fact that ‘unoriginal’ postmodern practices are an integral part of the identity constitution of the postmodern subject might warrant awarding intellectual property rights also to postmodern artists—and in the case of graffiti even to additionally grant a certain protection of the physical artwork as a personal extension (which, e.g., VARA provides), at least if contrary to certain thinkers, we still assume that “personal identity […] matters” (cf. Parfit 1984, pp. 241, 245). That ‘unoriginal’ creations should qualify for intellectual property rights could further be warranted by the insight that originality, at least in the established sense, is not possible, consequently requiring ‘non-original’ art be treated equal to ostensibly ‘original’ art.

There are, however, two main objections against such an approach:

First, if we accept the latter argument, such “intellectual property” would need to be radically different than before, since a continuing (postmodern) production of both the self and of art might at least require extensive fair-use exceptions, thereby making fair use the rule, not the exception. This would also solve one problem tied to the fair-use defense: that, as a defense, the onus of proof for the exception lies with the defendant (Lemley 2007). The demand for such a revised fair-use rule is easy to substantiate: if it is true that all art, if not all communication, is irreducibly intertextual, and originality is a myth, it would be unjustifiable to constrain such practices by awarding intellectual property rights in the form of monopolies (such as copyright). Though ideas are, in general, free, and IP law only protects the ‘formed’ idea and not the idea itself (also referred to in scholarship as the ‘idea-expression-dichotomy’ of copyright law),114 the forms available to convey ideas are equally limited, making it necessary to also keep a certain freedom of form to maintain a culture of creation (cf. Lessig 2004). The latter is an insight that the law of design in particular has internalized when it determines the required degree of deviation from pre-existing forms not by an absolute standard, but relatively, with the criterion being how much freedom was in fact existed in the individual case.115 Furthermore, the dichotomy of idea and formed expression is not only problematic in music. Literature is an equally tricky field of artistic practice in this regard. As Eco (1985) has demonstrated, literary works are full of quotations: Both micro-narratives and larger narratives or “schemes” (such as plot structures) are repeated constantly within the history of literary practice, and in fact secure the successful reception of a work. To decide where the abstract idea ends and where the legally protected “formed idea” starts, is to a larger degree arbitrary: are larger formal structures (as plots, subplots, and micro-narratives) already part of the formed idea? Courts have failed to establish clear criteria here, resorting to ad hoc-decisions that often rather seem to rely on intuition, than on arguments.116 In light of the long history of repetition even only within modern literature, it would be absurd to question the legitimacy of such formal re-use even when being ‘substantially similar,’ regardless of whether resulting from a conscious or an unconscious decision.

To be reconsidered under postmodern presuppositions are furthermore extensive moral rights provisions, such as the right to be named and the right to prevent distortion (integrity right), both impeding not only artistic practices, but also communication in general. The legitimate question then, however, is: “what would be left with such a harshly reduced conception of intellectual ‘property’?”—and whether it would not be more adequate in a time of postmodernism to discard the idea of intellectual property completely.

Second, the intellectual property idea as such is irreducibly based on idealist premises: it is built on the dichotomic idea of a subject–object relation, and this relation is furthermore necessarily hierarchical, prioritizing the first creator. Both criteria have become highly questionable in postmodernism, raising concern whether the idea of intellectual property can be saved by way of modification or restriction.

It could, however, nevertheless, be wrong to discard intellectual property rights completely.

First, if postmodern practices are the second skin of the postmodern subject, the self—even though neither being individual nor original—might still need its medial ‘extensions’ or ‘realizations’. As consequence, one could consider to uphold certain moral rights in a very limited scope. As already Andy Warhol suggested,117 protection should include a prevention of false light (i.e., that a person’s reputation is tarnished by works that are falsely attributed), and a protection of the physical manifestations, as, e.g., VARA provides. If postmodern identities are radically transient (a skin to be regularly shed so to say), a longer-lasting protection of these manifestations, as the current IP law provides, might, however, not be warranted. The only justifiable privilege could be a short-termed protection of the formed idea and its physical118 manifestations. Such an approach would be post-idealist in the sense of not discarding the idea of the ‘realization’ of the person through the means of different media, while providing an amended, postmodern version that rejects the problematic presumptions of originality, individuality and stability of identity.

Second, completely discarding intellectual property rights would mean to ignore one essential reason of why the concept was originally established: intellectual property is a relevant commercial commodity that was either awarded to secure the livelihood of its creators (the old idea of the Statute of Anne, based on the natural law understanding of the invested labor as “sweat of thy brow”), or was granted as an incentive because society as a whole profits from creations (the utilitarian take of the ‘progress clause’ of the American Constitution).119 Both positions, though being fundamentally different in objective, agree that monetary revenues are indispensable in order to achieve their aims. Legislators have tried to balance the competing interests (here considering how long revenues need to be guaranteed for), and utilitarian legislations have kept these limitations to the absolute minimum, prioritizing society’s interests in free use. In design and patent law, the understanding consequently has long dawned that the property analogy is misleading when talking about such short-timed rights of the creator. But for copyright also, it has been held that we should rather speak about “Limited Intellectual Monopolies” (Raboy and Landry 2005, p. 88) or “Government-Originated Legally Enforced Monopolies” (Stallman 2006), instead of speaking of ‘property’ in the classical sense of an eternal and unconstrained position. That contrary to traditional property law, copyright is particularly exclusive, leading to the complete monopolization of a form, has been noted as one of the key differences that distinguishes intellectual property from traditional types of property, making the analogy highly problematic (Lemley 2005b; see also: Landes and Posner 2003, pp. 254–69). The term “monopoly” has in fact already been used by the framers of the U.S. constitution when discussing the drafting of the progress clause (Jefferson [1789] 1958), but the idea found itself later replaced by the property analogy. Others have pushed the analogy further, asking why there is no property tax on intellectual property (Lessig and Worthington 2002).

A postmodern understanding of artistic creation furthermore is much closer to the short-term-monopolies model of design and patent IP law, than to the classical copyright, making it a better fitting solution that also avoids the idealist presupposition (in the Kantian sense) that the creation is naturally and eternally a part of the inner personality of the creator (Kant 1785, p. 415).

It might be objected that copyright, traditionally understood in the United States and the UK as an irreducible commercial right, is not suitable to protect a medium primarily used for postmodern identity constitution. But as courts had to concede in the past (see Campbell v. Acuff-Rose Music (1994)), the commercial vs. non-commercial (private) divide in intellectual property law is one dichotomy most in need to be deconstrued.120

Furthermore, it might be objected that the incentive of being publicly named might already be sufficient to encourage creation. The right to be named, e.g., proved sufficient to encourage creation in some areas (vimeo, youtube, open-access publishing under a creative commons license), fostering discussions such as whether awards were not a better incentive than intellectual property rights (cf. Roin 2014; Boldrin and Levine 2009). Others have called for a “hybrid economy” as a compromise (Lessig 2008). Open software distributions (such as GNU/Linux) and free-content encyclopedia (such as Nupedia and Wikipedia) have even proven that in some areas, neither monetary incentives nor the right to be named are required to foster innovation.

It has furthermore been claimed that in postmodern art—if not in the field of art, in general—artists have only a limited interest in intellectual property protection (Landes and Posner 2003, p. 259). On the other hand, contrary to the latter arguments, Hip Hop in particular evidences that commercial success and the conjoined social status are relevant factors in identity constitution that have even become the topics of many Rap tracks: in order to constitute themselves, artists rap about the cars the drive, the fashion and luxury items they wear, and about how much money they make, the latter only adding to the general pretense of being not only better but also more successful than their opponents in the Rap game. For graffiti as an urban practice, commercial success might be less relevant, as might be the right of attribution. Instead, the tag (as the signature turned into an artwork) has internalized what the right to be named encompasses in other artforms. The profession of the visual artist in general, however, would surely not be viable anymore if copyright was excluded, and the principle of a uniform treatment of the visual arts might require to also include street art.

To bring copyright closer to the model of design and patent rights would furthermore have the benefit of making intellectual property law more homogeneous considering the fact that it includes such very different commodities as literary and artistic works, patents, designs, images, symbols, and other “useful articles,” (17.U.S.C. $101), and trade secrets (the latter comprising information, formulas, practices, and processes). Currently, copyright with its newer moral rights annex is particularly different from the other forms of intellectual property and is ideologically hard to bring into accord with the underlying principles of the other branches.

With graffiti and postmodern literature, my suggestions, however, concern only a limited area of the field of superficial creation. Another highly superficial practice—Generative AI—is an increasingly relevant field of inquiry, and the question arises of whether above guidelines can also be applied to the latter. The issue is pressing, since AI-created material is currently not protected under copyright for the reason of lacking a human creator (cf. USCO 2023; Thaler v. Perlmutter (2025)), while it might, at the same time, well infringe the copyright of others (cf. Appel et al. 2023; The Secretary of State for Science, Innovation and Technology 2024 (for the UK); Quintais 2025 (for the EU); Peng et al. 2023).

If we understand generative pre-trained transformers (GPTs) based on large language models as merely recovering pre-existing syntactic units devoid of any actual understanding, hence only operating on a horizontal plane by repeating the dominant patterns of language use in context of certain tokens (on the question whether GPTs have actual understanding see Mitchell and Krakauer 2023), generative AI would not only be the most current paradigm of intertextuality, but its technique would be radically superficial in the sense of the topic of my article.

The discussion on AI, however, is too advanced, and the factors necessary to determine the adequate legal treatment far too complex to simply apply the results derived from my analysis of postmodern artistic production—and I want to leave the matter to another article in preparation.121 But the discussion on AI needs to at least acknowledge that in light of the superficial nature of LLM-generated material, the law’s outdated stance to the surface of things (and its need to be revised) might be a relevant factor also to be considered in the AI-debate.

7.2. Vandalism Privileges?

Though a revised understanding of intellectual property (or better: of short-termed ‘monopolies’ with a very limited moral rights guarantee) also has consequences for the question of an additional physical property protection (as, e.g., provided by VARA), in the case of graffiti, another legally protected interest needs to be considered: that of the owners whose property is ‘refaced’ (I prefer “reface” to the term to “deface,” since it is less prejudicial in terms of the surface–essence relation). It is evident that, for graffiti, the law of physical property is, in general, more pertinent than the intellectual property rights dimension. While graffiti artists have been scolded for being vandals, the act of reclaiming unused buildings by ways of graffiti has been a relevant aspect of the empowerment of local communities. Graffiti has furthermore defined urban spaces (and consequently their inhabitants), hence aiding in creating localized collective identities (cf. Evans 2025).

In light of the parallels between Hip Hop and graffiti, the question evidently arises whether a revision of the understanding of tangible property is equally overdue. For graffiti, the intangible is particularly intertwined with the physical: buildings are not only the canvases where self-constitution or self-expression becomes possible but are also the means of social criticism, regardless of whether only by ways of resistance and opposition (the implicit message that tagging as an act of ignoring property rights entails) or by explicit criticism. Alternative property theories—from Hegel and Bentham’s more traditional stance to Nozick’s and Rawls’ newer approaches—might be better equipped to integrate these demands than the classical theory of property as an unlimited and eternally protected privilege (cf. Hegel [1820] 1896, at para 54; Nozick 1974, p. 151; Rawls 1999, p. 53; Smith and Merrill 2007).

More recent legislation such as VARA has been a relevant step in revising the idea of tangible property by limiting the rights of the physical property owners, but this revision is insofar hesitant, since this restriction required that the proprietors have given permission that their property is used as a medium for artistic practice. Although such requirement is clearly conflicting with the longstanding legal principle that the question of the acquisition of property by means of specification should be a ‘natural’ decision, solely depending on the nature of things and independent of considerations of justice, the idea that a proprietor’s permission is prerogative is a long-established principle of common law that has also been invoked early by scholars in the context of the (civil) law of specification.122 The permission requirement, however, is based on problematic fictions, such as the free agency of its protagonists and a free marketplace. The reality is different, though: many are excluded from participation in our society, since they do not possess the necessary financial means to realize their freedom. The idea that financial means, if not physical property, is a necessary condition for agency is old, and can be traced as far back as the Greek philosophers, such as Aristotle, who pondered on the relation of property and freedom (Long 1996). The idea was later reflected in many voting rights laws that restrict participation to those possessing enough property in order to be considered independent in their vote (Bateman 2018; Moeller and King 2018). The issue of property as a prerequisite to exercise one’s freedoms is furthermore still of relevance in the contemporary debate whether constitutional rights are not merely negative (as a defense against the state) but instead need to be considered as positive, e.g., as duties of the state not only to provide the legal framework for a protection of these rights but to actively enable the citizens to enjoy these freedoms (Gewirth 1997, chap. 2; cf. Gewirth 2001), potentially requiring state subventions such as free education, unemployment benefits, or even a ‘universal basic income’ (on the latter see Van Parijs 2023), as, e.g., provided by the Alaska Permanent Fund since 1976 and currently discussed in the European Union (Karakas 2016).

The question of a ‘vandalism privilege’ is particularly relevant for Hip Hop and graffiti as two artforms that have grown out of precarious social contexts and, consequently, have been described as instruments of the empowerment of persons and groups experiencing poverty and disenfranchisement. How both artforms (and the pertaining legal questions) are connected to the question of property as the prerequisite of basic rights and liberties is evidenced by the fact that both issues have already been debated by Hegel in one and the same context: in the context of the “self-realization of the person”. According to Hegel, the person can start to realize itself as a free person first by the acquisition and use of physical property (Hegel [1820] 1896, §54) and second, by contracting (e.g., by transferring intellectual property).123 If we take these two forms to be essential for self-realization, the legitimate question would be whether we in fact need to excuse it when Hip Hop or graffiti artists deliberately break the law.

While a ‘borrowing privilege’ would not be necessary in intellectual property law if we radically constrain intellectual property protection per the above proposed model, making free (fair) use the norm, the question remains whether at least graffiti artists needed to be granted a right to reface the physical property of others for the purposes of self-constitution and self-realization, at least until a just society has been generated where property is more equally distributed. A compromise could be that graffiti artists should not be sanctioned when committing such infractions on public property, or designated spaces for graffiti would at least need to be created in cities as part of this positive dimension of constitutional rights.

Considering such a vandalism privilege is of course provocative, as one can only imagine how a city would change if all property was free to be refaced. It nevertheless is a possible consequence that legitimately follows from the above considerations and hence, at least needs to be considered. Though, in particular, legal scholars might be reluctant to permit artistic self-expression at the expense of others, such position might change if we consider that similar licenses to violate the rights of others have in fact already been granted in the context of the freedom of expression and the freedom of art. In the case of Rap, jurisprudence has at least started to accept threats and insults directed at real and identifiable persons as an integral “part of the artform”124—and thus to be covered by the freedom of art, even though such ‘culture of insult’ operates at the expense of the rights of others.125 In the United Kingdom, less radically, Section 57 of the Crime and Courts Act of 2013 amended the Public Order Act by decriminalizing insulting words when not directed at an identifiable addressee in the real world, which is usually the case in fictional communication (see Lind 2020d, pp. 25–28; 2020c, pp. 129–30) but also applies to visual art and graffiti.126

It might be objected that violating physical property (as graffiti does) is not comparable to the ‘culture of insult’ in Hip Hop. However, treating property infringements differently from the infringement of a person’s honor would mean to cling to the outdated assumption that the physical is more important than the mental—an assumption already discarded during the Enlightenment, though it has persisted in certain parts of the law, e.g., in case of the reluctance of courts in many countries127 to award compensation for immaterial damages comparable in levels to the established practice of compensating physical damages (e.g., a pretium doloris).128

The demand to allow, or at least to tolerate certain infringements as part of a postmodern practice of identity constitution and empowerment, furthermore correlates with another question I have treated in the same law course: whether calling-out in social media is a form of vigilantism and, with social media being the new pillory, part of a culture of extra-legal punishment where penalties are often more severe than those administered by the law.129 It is evident that social media practices, such as calling-out, shitstorms and social shaming, have instituted a non-governmental practice of social punishment, a policing and punitive system competing with the legal institutions that is hard to be tolerated from the legal premise that the power to punish resides solely in the government. However, both the #MeToo movement and Black Rights Matter have shown that the idea of a governmental punishment privilege is based on the illusion that the system works and sufficiently protects the victims. In reality, the system is either faulty (if not structurally racist/misogynist) or at least does not protect the victims sufficiently due to an unfortunate asymmetry of power between victim and perpetrator. Such grave asymmetries that might legitimize infractions of the law are surely a persisting concern in our postmodern world, and though the means of empowerment have diversified and shifted, the inequalities still subsist. Hip Hop and graffiti might have the right to claim ethical legitimacy as an alternate means of empowerment in this problematic constellation even in cases where they are deliberately conflicting with the law.