Street Art and Copyright Laws
Melbourne, like many cities in Australia, has long been known for its rich art and culture.
However, some of the city’s best examples of artistic expression don’t appear inside museums, but instead outdoors, in the form of street art.
Street art, defined as visual art created in public locations, has been gaining credibility as a legitimate way for artists to communicate their works directly to the public, outside the confines of the mainstream art world. This art form, expressed as murals, stencils, sticker art, paste-ups and even yarn bombing, is sprayed or painted on walls and in laneways, or attached to poles and park benches. These works are both sanctioned and unsanctioned and may appear only temporarily or be permanent features of public spaces
Image courtesy of street artist, RONE
The rise of street art
Works of street art can be cool and trendy, often possessing enviable ‘street cred.’ Street artists, such as Banksy, Shepard Fairey, Laser 3.14, Saber and Retina have leveraged their signature street art styles to gain celebrity in their own right, some gaining important artistic commissions, selling out gallery shows and gaining significant status in the art world.
Recognizing the allure of this type of art culture, today’s retail brands have increasingly looked to incorporate elements of street art into their products. This is seen as a way to access this cultural cachet, distinguishing their brands and attracting the profitable youth demographic that this culture attracts. The outcome of such efforts have resulted in products ranging from Chanel’s spray painted ‘Grafitti’ backpacks, clothing retailer American Eagle Outfitters’ use of street artist Cali Killa’s image in t-shirt graphics, and car maker Fiat’s use of a mural painted by Tats Cru, a group of graffiti artists, in the car’s promotional advertisements.
Is street art legal and is it protected under copyright law?
However, the trend toward using street art in photographs and other works is not without potential legal consequences. Just because street art is out in the open for all to see, does not mean that any use of such work is legal.
The existence of copyright law means that people, such as photographers, who may incorporate street art into their work could potentially risk exposing themselves to a raft of legal issues.
For example, consider the following scenarios:
-You photograph a street mural and sell the image to a fashion designer who uses the image as the as the background print in a line of clothing. You and the designer are later surprised to receive a cease and desist from the street artist's lawyer, alleging that the designs incorporated his artwork without his consent.
-You conduct a photo shoot featuring a car and a celebrity model in an alleyway in Melbourne. A variety of colorful street art appears in the background of the shot. Will publishing the photographs be an infringement of the street artists’ copyright?
-You take photographs of prominent street art you see and wish to frame and sell your work. How can you avoid infringing on the copyright of the street artists who created the work? And what should do you do if you can’t determine who created the artwork?
The law
Understanding the law as it relates to street art can make the difference between working legally and putting yourself at risk of a lawsuit.
Street art is generally protected by copyright law. To receive copyright protection, a piece of artwork needs only two things: to be an original work and it must not be a copy. As a result, graffiti and other forms of street art are no different from other artistic works protected by the Copyright Act 1968 (Cth), regardless of whether the street art was created legally or illegally. In Australia, copyright subsists in a work without the need for registration.
As an artistic work, ownership of copyright in street art will theoretically belong to the original artist. Copyright law provides the owner the exclusive right to reproduce the artwork (whether on the internet, in a photograph, as the background in an advertisement or otherwise), to publish the work, or to communicate the work to the public.
Although Australian copyright law permits a person to photograph buildings and sculptures if such a structure is permanently situated in a public place, this permission does not extend to photographing artistic works such as street art. This is because street art is not a permanent building and photographing the work is considered reproducing the work, which is an exclusive right belonging only to the copyright owner.
Street art: Free to see, but not free to film
When photographing street art, you are reproducing the artwork and are thus potentially infringing the copyright in the work. Infringement can occur whether the street art is the prominent feature of the photo, or captured incidentally in the background. Either way, this may become problematic to the photographer if the original artist believes that the photograph has infringed his or her copyright or moral rights. It is far more likely that an artist would have an issue with a photograph that features his street art being reproduced and exploited for a commercial purpose.
When do you risk infringing the copyright of street art?
The Copyright Act prevents photographers from making a 'substantial reproduction' without the artist's permission. Contrary to popular belief, there is no black and white definition of the meaning of 'substantial reproduction' and no bright line exists to determine when copyright infringement has occurred.
One reason for the uncertainty is that the legal test for copyright infringement is based on the quality, rather than the quantity of what has been copied. So, depending on what features of the artwork you photograph, even a photo containing small part of a work of street art could be held sufficient to infringe copyright.
Another complicating factor is that although a number of street artists have initiated legal action in relation to their work, because the number of lawsuits is still limited and that fact that some of the lawsuits have settled prior to trial, a limited number of legal judgments exist to help clarify the law.
The unknown artists
Another copyright issue pertinent to street art is that it can often be difficult or even impossible to identify and/or contact the artist. An artist may create his artwork under a pseudonym to protect his identity or out of fear of being prosecuted for vandalism. The important thing to note here is that copyright will still subsist in the work; the only difference is that the term of protection will change if the work is anonymous.
A Case Study
While you may not think photographing street art is a pertinent legal issue (after all, it's on the streets and publicly available for anyone to enjoy), it was recently the basis of two lawsuits in a court in New York in the United States.
In August 2014, artist Maya Hayuk applied to separately sue two companies, clothing brand Coach and Sony Music, for infringing the copyright in her art.
In both cases, Hayuk stated that the defendant companies had prominently displayed her work in their promotional material without her permission.
Hayuk had originally painted her street mural, titled Chem Trails NYC on the Houston Bowery wall as part of a 50th birthday tribute to artist Keith Haring. The wall is privately owned, and the owner often invites artists to paint on it, with the murals only lasting for a short time before being replaced by another artist's work.
The painting featured patterns of diamonds with bright intersecting lines and dripping paint, and Hayuk had registered the work with the US Copyright Office.
In her legal action against luxury handbag and accessory label, Coach, the artist complained that her mural was used as a backdrop for a number of model shoots which were then reproduced on the Internet to promote Coach's accessories and clothing line.
Likewise, in her lawsuit against Sony Music, Hayuk complained that the record company's musician Sara Bareilles had used her street mural to promote her upcoming album and tour. Aaron Silverstein, Hayuk's lawyer, commented that 'Maya is an extremely prolific and hard-working artist... [her artwork] is how she pays for rent and feeds herself, so when there's a misappropriation of her work, it's a big deal for her.'
In both cases, Hayuk sued the companies for damages, costs and an award of profits gained from the use of her work, as well as an injunction to stop all use of her mural.
Both complaints made by Hayuk stated that the artist often licenses her artwork for uses such as those complained about in the two cases. Therefore, it was argued that by copying Hayuk's artwork without her permission, the companies caused her to suffer a loss of licensing revenue.
Another potentially pertinent issue for the court to consider was the fact that the mural (which has since been replaced) was only meant to be a short-lived piece of artwork, but has now been immortalised without the artist's consent.
Further examples
Coach and Sony Music are hardly the first big corporations to get into legal trouble for using photos of street art without authorisation. In 2014, American clothing chain American Eagle was sued by Miami-based street artist Ahol Sniffs Glue (real name David Anasagasti) for incorporating Ahol’s signature ‘droopy eyes’ murals into their promotional campaign. Amongst other things, one of the images that the company used on its billboards featured a male model standing in front of a mural created by Ahol while holding a spray can, as if to imply that the model had created the artwork himself.
Similarly, in 2007, a group of Bronx-based graffiti artists know as Tats Cru brought actions against photographer Peter Rosenstein, who published a book called ‘Tattooed Walls’ featuring many photographs of New York graffiti and street art, including Tats Cru’s art works.
Some tips for street artists and photographers of street art
Technically speaking, if you take a photo of street art, you may be infringing their copyright.
If the photo is just for personal use or say for example post a pic on Instagram, this may still be copyright infringement, however some artists are less likely to complain if you are singing their praises.
However, the important thing to remember is that if you take photos of a substantial part of someone’s street art and use these photographs in a commercial manner, for example in situations similar to those in the cases above, you could get sued.
In any event, whether you are taking photos for personal or commercial use, it is best to be safe by first seeking permission from the artist, rather than taking the risk.
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