6 Things You Must Know About Copyrights and Street Art

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 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.

Some of the frequent questions that come up are:

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 publicly 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.

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?

For more on copyrights in street art, read the full article at artlawjournal.com.

Written by Phillips & Muir

Phillips & Muir

The attorneys of Gersten & Muir, P.A. are passionate advocates for businesses throughout Miami-Dade County. We provide numerous business legal services to help make your company grow and flourish. We are knowledgeable and dedicated to finding solutions that fit your company’s needs.