A Lawyer Talks about Copyrights in Street Art

6 Things You Must Know About Copyrights in Street Art
Megan Ralstin for Art Law Journal

Artist’s rights in their street art, whether commissioned or guerrilla, has been in the news with some frequency lately, largely due to suits against American Eagle and Terry Gilliam. The slippery nature of copyright law has left many wondering where to draw the line between taking a photograph with street art in the background and taking a photo that infringes on a copyright. Unfortunately, there are no easy answers. As we have pointed out before, artwork used without permission may not be considered an infringement. Rather, unauthorized use exists on a spectrum with clear infringement on one end and fair use on the other.

Miami’s Wynwood district has become a hotspot for street art. Recently, American Eagle used murals from one of Miami’s most well-known street artists, AholSniffsGlue, in its latest advertising campaign. Thanks to Ahol’s suit against American Eagle, many Miami artists have been wondering what rights they may have in the art that they have created on public walls on public streets. At the same time, many photographers, journalists, and bloggers have been wondering if they are exposing themselves to liability when they photograph street art.

To help clear up some of the confusion, LegalLink, a legal resource for artists organized by Cannonball, hosted a lecture with a question-and-answer segment in Miami, Florida on September 17th. As well as answering audience questions, the presenter pulled representative comments from news websites to illustrate come commonly held misconceptions about copyright in public art. You can watch the entire presentation and download the PDF here.

Below are some of the most frequently asked questions that come up in these discussions (with additional points and explanations that I hope are useful):

Q: Can street art be copyrighted?

A: Yes. Any original work of authorship (whether a huge mural or a tiny scribble) that contains some minimal level of creativity automatically becomes copyrighted the moment it is fixed in a tangible medium.

The main requirements to remember for copyrightability are:

Original work of authorship: The work in question can’t simply be a copy of someone else’s work, and it must also be the product of the author’s creativity. For example, the information listed in the phone book can’t be copyrighted because it is a recitation of facts without the creativity required for originality. On the other hand, the monkey selfie couldn’t get a copyright because it lacked the necessary authorship: at this point, animals don’t count as “authors.”
Fixed in a tangible medium of expression: The work must exist in the world for more than a transitory moment, as, for example, a painting, text, musical score or recording, or a photograph. Street art (as opposed to, say, performance art) pretty easily meets this requirement if it’s painted on a concrete wall.

See our article on taking photos in museums for more on the issues surrounding taking photos of two-dimensional works like graffiti vs. three-dimensional art such as sculptures.

Q: If the art is in a public place where everyone can see it, doesn’t that mean it’s in the public domain?

A: Nope. “Public Domain” is a legal term of art (in the legalistic sense, not an artistic one) that means that an older work that once had a copyright has had its legal protections expire. Currently, copyright in a work will exist for the life of the author plus 70 years. Sherlock Homes is a good example of this: the character recently fell into the public domain (after more than 100 years since his creation), which means anyone can now write stories using the character.

On the other hand, placing art in a public place or allowing it to be publically viewed does not change the essential nature of the artist’s copyright. The author still holds the exclusive right to make reproductions of the work, for example, regardless of how many people can just walk by and look at it.

Public photo rules are slightly different when it comes to photographing people in public or taking pictures of buildings.  To find out about more, take a look at our articles on Copyright in Architectural Designs and the Law of Drone Photography

Q: Can graffiti be copyrighted?

A: This is a bit more complicated if we make the distinction that sanctioned or commissioned artwork is “street art,” and illegally placed images or tags are “graffiti.” If the art has been placed on a property illegally, some argue that it should not be given copyright protection. The US Constitution instructs congress to provide certain intellectual property protections in order to “promote the Progress of Science and useful Arts.” If a society does not consider graffiti a “useful art” that should be incentivized by the government, courts could reason that the graffiti artist should not be rewarded for vandalism.

On one hand, the illegality of the art has little to do with whether the work meets the original-creative-fixed requirements of the Copyright Act. The plain text of the law makes no distinction between original works hanging in a museum and those spray-painted on an irate stranger’s property. Conversely, courts don’t want people to profit from their illegal activities. So the matter is still up for debate, and the answer is… maybe?

Q: Do you have to register with the copyright office to have a copyright?

A: No, but you should register anyway, and do it before anyone has a chance to infringe. As mentioned above, registration is not necessary: you have a copyright the moment the work is put down in a tangible medium. Although the copyright is automatic, the Copyright Act provides that if a work is registered with the  Copyright Office prior to an infringement (or if registration occurs within 3 months of publication), then the copyright registrant is entitled to receive statutory damages from $750 – $30,000 per infringement and the infringer is required to pay for the legal fees. You want these statutory damages, as they are often the determining factor in being able to bring an infringement suit.

If you register your work after someone has infringed on your copyright, only actual damages are available, meaning any profit that the infringer received due to the theft and any money that you may have lost. For example, assume a company bought an exclusive license to use your photo on a product package. The company then sees that same photo on a stock photo website, which was stolen and uploaded by someone in Croatia.  Because the stolen version is on the stock site, the company decides to cancel your contract. In that case, you can sue the stock photo site for any profit on the sales of the photo as well as the value of the lost contract.

Unfortunately, cases with lost contracts or other high losses are rare. In our scenario, if not for the lost contract, you would only be entitled to the profit on the sales.  If 10 photos were sold at $10 each, then you are entitled to $100.  That is not enough money to sue over and the most you can probably do is to ask the infringer to remove the work. On the other hand, the statutory damages represent enough of a financial incentive to warrant moving ahead with litigation. So it pays to register, especially given that registration is only $35 per image. For photos, the deal is even better.  You can do a single registration for up to 750 photos by the same photographer for only $55 if they were all taken in the same year. Again, while registration is not required, it has significant benefits.

One last point: in order to sue for copyright infringement in the United States, U.S citizens and residents must register prior to initiating a lawsuit. This means that even though you own the copyright, you can’t sue at all until after you register. Registration is not a requirement for non-citizens and those living outside of the U.S.

Q: If I own the copyright in a piece of street art, can I stop anyone from ripping it down or painting it over?

A: Not unless you also own the wall. Somewhat counterintuitively, owning a copyright doesn’t necessarily mean you own that copy of the work. You have the exclusive rights to make reproductions of the work, but the person who owns the wall also probably owns the paint on that wall. The one thing that might save a piece from either being destroyed or subjected to the Banksy treatment is the VARA.

The Visual Artist’s Rights Act gives some protection for original works of art: It provides that authors are “entitled to prevent any intentional distortion, mutilation or other modification of that work which would be prejudicial to his or her honor or reputation,” as well as the “right to prevent any intentional or grossly negligent destruction of a work of recognized stature.” The problems with applying these provisions to street art are that only works of “recognized stature” are protected from destruction, and painting over a wall is usually not prejudicial to one’s honor, although it may bruise one’s ego.

As we saw in the recent 5pointz graffiti case in New York, the court allowed the destruction of dozens of graffiti murals in order to make way for a new high-rise building. Even commissioned art may not have protections under VARA. In Chicago, an outdoor art installation that had been in place for several years was partially removed despite the artist’s protests.

Q: If someone takes a picture of my mural, does this mean they have infringed on my copyright? Does this mean that any photographs I take of street art will infringe on someone’s copyright?

A: It depends on–and here’s the sticking point–the nature of the use. There is a kind of use that is statutorily defined as “fair use,” a theory that most people are familiar with, but is poorly understood. Section 107 of the Copyright Act provides that reproductions can be made for the purposes of “criticism, comment, news reporting, teaching, … scholarship or research,” without infringing. Fair use is the reason a professor can use slides of artwork in his or her classroom, or why this site can use pictures specifically relating to items discussed in its articles. For example, it would be difficult to discuss the American Eagle Infringement without showing the reader the infringing ads. The hard part about this is determining if a particular use is fair.

In Stewart v. Abend, the Supreme Court explained that the fair use doctrine was an “equitable rule of reason, which permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”

Specifically, the statute instructs us to examine:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

For example, if you take a picture of your friend in front of some artwork in Wynwood and then post it on Instagram, this use would likely be considered “fair.” Why? Looking at the factors above, you can see that while it is not for educational purposes, per se, the use is not of a commercial nature. You are also probably not including the entire mural, and your buddy is blocking a portion of it in the foreground. Finally, your Instagram picture, even with all of its artful filters, is not likely to decrease the market or value of the original. In this example, the inclusion of the copyrighted artwork is incidental to your photograph of your buddy.

Another common scenario is the person writing about the art: if a journalist writes an article about an artist, the newspaper will want to run a photo of the art along with the story. This use is both commercial and educational in nature, so what is the result? In this case, even though the newspaper is a for-profit business, the use here is for “criticism, comment, [or] news reporting,” and is specifically authorized by the law.

On the other end of the spectrum is American Eagle’s use of Ahol’s work. The nature is blatantly commercial, with the work showing up in online and print ad campaigns, as well as in-store displays. The nature of the original work comes into play here as well: one of the ads shows a model with a can of spray paint, implying that he was painting the graffiti behind him. And, interestingly, it has an effect on the market for the original not because it is in direct competition, but because the association with a mainstream mall brand may tarnish Ahol’s reputation.

So where is the line drawn between taking a photograph with street art in the background and infringing on one’s artwork? The answer, unfortunately, depends on the situation. However one rule of thumb can guide the photographer: if you try to make money off someone else’s art, you are likely to have some legal problems.