LGraffiti and copyright law - Zach Hiller blogately, the question of artist’s rights and their street art, whether commissioned or guerrilla, has been in the news. Cases, from Ahol’s suit against American Eagle to Katy Perry’s dress, draw people to ask a few questions about graffiti and copyright. The confusing nature of copyright law has left many wondering where the line is drawn between legally and illegally using someone else’s graffiti artwork.

Unfortunately, there are no clear and easy answers. Artwork used without permission is not always automatically considered an infringement. Rather, unauthorized use is understood on a spectrum with infringement on one end and fair use on the other.

Below are some FAQ’s that come up when we talk about graffiti and copyright law:

1. Can street art be copyrighted?

Yes, an original work of art that contains some level of creativity automatically becomes copyrighted the moment it is fixed in a tangible medium. The art must exist for more than just a moment, such as a painting, musical score, text, or photograph. Street art, in comparison to performance art, easily meets this requirement if it’s on a wall (which it usually is).

2. If street art is in a public place, doesn’t that mean it’s in the public domain?

No. Copyright in a work exists for the life of the author, plus 70 years. After that time the work falls into public domain. Simply placing the art in the view of the public does not change the artist’s copyright. The author/creator still holds the rights to make reproductions.

3. Can graffiti be copyrighted?

Graffiti is more complicated than street art. The difference is that graffiti was illegally placed. Some argue that since it is illegal, it should therefore not be copyrighted. But, the US Constitution provides some intellectual property protections in order to “promote the Progress of Science and useful Arts.” Whether the art is legal or not, has little to do with the work meeting the original-creative-fixed requirements of the Copyright Act. This matter although, is still up for debate.

4. Do pictures of street art and graffiti infringe on copyright?

This answer always depends on the use of the photo. The challenge is determining if a particular use is fair. Each use would be evaluated based on nature of the work, how much it relates to the use, whether it’s for commercial or nonprofit, and the effect of the use upon the market value of the work. Basically, if you take a picture of yourself in front of a mural and post it on Facebook, this is probably fair use. You are most likely not trying to gain any money from this photo, you are probably blocking part of it and not including the entire thing and finally you are not trying to repurpose it in any way. A rule of thumb: if you try to make money off someone else’s art, you will probably run into legal issues, otherwise you’ll probably be ok.

Do you have questions or concerns about street art and copyright? Ask them in the comments below! If you need to discuss a copyright legal case, contact me today.

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