Public Art is not the Same Thing as Public Domain! (Copyright Implications of Street Arts and Murals)
Almost every major city seems to have its share of street art and/or murals painted on the sides of buildings. Such art can be the work of an anonymous artist, graffiti or it can take the form of being commissioned by the city. The art in question can be making a political/societal statement, commemorating recent events, serving as advertising, or simply intended to provide a display of creative expression on the part of the artist. Often certain public artwork can even gain notoriety and become proudly associated with the public image or ethos of a city in the eyes of its inhabitants, so as to become synonymous with that city's image. This form of visual art is public in terms of its nature and appearance. However, just because this visual art is public in nature, does not mean that it is public domain, and thus free to use and reproduce. This article will provide an introductory lesson in the applicable copyright concerns that may apply to street art.
Understanding Rights under Copyright Law
Any time that anyone creates a creative work and affixes or preserves it on a tangible medium of expression, they have certain rights under copyright law. Copyright covers a variety of different types of creative works, ranging from music recordings, art on canvas, to published and unpublished books and more. In that sense, though not always understood to act the same way, a creative work that is affixed to a wall or building can thus attain copyright protection. Copyright law dictates that the owner/artist (though they may not be the same) has exclusive rights to produce and profit from any copies and/or "derivative works" based on the original work.
Understanding Derivative Works Under Copyright Law
A derivative work is any subsequent creative work that incorporates major elements of a pre-existing creative work. In the context of public or street art, derivatives of the original work can be understood to encompass:
a) Photographs of the Mural or Street Art intended to be sold;
b) Depictions of the Mural or Street Art on other mediums, such as mugs, hats, t-shirts or bags; and/or
c) Use of the Mural or Street Art in any advertising.
Thus, anyone trying to utilize a mural or street art in any of the above ways can be liable for infringement if they do not have the express permission of the owner/artist (i.e. whoever owns the rights). In that crucial way, this "public" art is not public domain and thus is not free to be used commercially without consequences. If you're a photographer aiming to capture and sell images of street art and murals, it's essential to seek permission from the copyright owner.
Understanding Who May Own the Rights to Murals or Street Art
Figuring out from whom to get permission to reproduce or use a derivative work based on a mural or street art can be a tricky proposition. Just because someone may own the building it is affixed or displayed on does not make that person the copyright owner. The answer depends on a variety of factors. For instance, if the artwork was commissioned (let's say by the city or perhaps by the owner of a building), it can be considered a "work for hire" in which case the artist may not be the copyright owner or holder, it may be the person or entity commissioning the work. Such details will always be spelled out in the agreement commissioning the work. On the other hand, if the moral or street art were produced by an artist without being commissioned, it is likely that the artist will be the copyright owner.
Murals or Street Art Have already been the Cause of Costly Litigation
The fear that the misappropriation of images of murals or street art can lead to costly litigation is not far-fetched. Indeed, there have already been several significant cases that have already arisen in recent years. One involved the trendy dhow company Aldo, which featured mural artwork in certain of its promotional materials distributed over social media. In 2019 the artist responsible for the mural in question (a popular artist often sought after to prepare murals for various brands) sued Aldo in Federal Court. The lawsuit alleged copyright infringement, because the Aldo social media ads had models posing in front of the artist's mural without permission. The lawsuit sought damages, attorney fees, and an order permanently preventing Aldo from using such photos. Ultimately the lawsuit was settled and dismissed for an undisclosed sum.
In another lawsuit, General Motors launched an ad campaign for its new Cadillac XT4 vehicle with photos of the vehicle in a Detroit parking garage that had murals in the background. The artist of the murals sued General Motors for various claims, including copyright infringement. That case likewise settled for an undisclosed sum, after General Motors lost its motion for summary judgment. In both cases, obviously the defendants had to also pay their own attorney fees, in addition to any sums paid to the plaintiffs in question.
Conclusion
The takeaway from these cases is that litigation involving the misappropriation of images of murals or street art can indeed be costly. Murals enrich our urban landscapes and offer a powerful medium for artistic expression. However, they also come with significant legal protections that must be respected. Thus, before you decide to take an image of well-known public art and put it on an item for sale (such as souvenirs, t-shirts, etc), think twice and do the research to make sure that you are not going to run into a copyright infringement problem.
It is thus always a prudent decision to consult with a knowledgeable attorney before taking any action that may cause you to be exposed to copyright infringement litigation. For support and to ensure adherence to all intricacies, it is advisable to seek advice from a qualified copyright lawyer. At Dragan Ivetic Attorney, at Law, LLC we pride ourselves in guiding businesses through the complexities of copyright law, offering assistance for all types of businesses. Get in touch with us today to explore how we can support you in copyright matters involving street art!
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