Originally published on March 2, 2017 in Rangefinder Magazine.
Many photographers have moved out of photographing in the safe confines of a studio and into the street. While out and about, photographers have discovered street art, and started using it as either the subject of or backdrop to their projects. For purposes of this article, “street art” refers to any two-dimensional creative expression executed directly on property (private or public) that is viewable to the public (e.g., painted mural, graffiti, etc.). But is photographing street art in this way a violation of the street artist’s copyrights that is legally actionable against the photographer? A general examination of this issue is presented here.
Is street art copyrightable?
In general, artwork becomes eligible for copyright when it is fixed in a tangible medium (for example, painted on a brick wall), and it must be original to the author (i.e., not a copy of a someone else’s work). The fact that street art is openly displayed in public does not change a street artist’s ability to protect her work from copyright infringement.
There are, however, two issues that may affect the copyrightability of some street art. The first is whether the art consists solely of words, such as titles, names, short phrases and slogans; or familiar symbols, designs, or variations of typographic ornamentation (e.g., calligraphy or different fonts). The second is whether the art was placed on the property with or without permission.
The Copyright Office has clearly stated that “titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring are not eligible for copyright.” See 37 C.F.R. Section 202.1. Why? Because such work, no matter the amount of time and effort an artist has invested in it or how artistically drawn, is not considered “original” to the author. As a result, some street art of short words and phrases, although artistic, may not qualify for copyright.
The second issue that may affect a street artist’s copyright is more complicated. “Graffiti” is traditionally defined as a drawing or painting on a wall that is placed there without permission (vandalism). While U.S. copyright law does not state whether such art is eligible for copyright, courts generally do not reward criminal action. Moreover, the purpose of copyright law is to “promote the Progress of Science and useful Arts.” See Article 1, Section 8, Clause 8, U.S. Constitution. Some have argued successfully in court that artistic vandalism is not “useful art.” Therefore, while this issue is not clearly defined in U.S. copyright law, it seems that art placed on property without permission is less likely to be as eligible for copyright protection.
Interestingly, however, whether street art was drawn with or without permission is not always visibly obvious or otherwise known to the public. Thus, unless it is well known that the artwork was drawn without permission (on either public or private property), then it may be safer for photographers to assume that any street art that consists of more than words and phrases may be copyrighted or copyrightable.
Does photographing street art violate the street artist’s copyright?
Under U.S. Copyright law, the violation of a copyright owner’s exclusive rights occurs when an infringer copies and/or creates a “derivative work” that is a copy or “substantially similar” to the copyright owner’s work. Thus, taking the photograph of a colorful mural alone, for the specific purpose of making a copy of the mural itself, may violate the mural artist’s copyright - especially if the image is then sold by the photographer for a commercial purpose (such as an advertisement). However, professional photographers often use street art as a backdrop to their projects or photograph the mural together with other elements, and creatively use lighting and composition to create something that is more unique. In such cases, a defense known as “fair use” may apply.
If certain factors are met, “fair use” allows for the use of copyrighted materials without the copyright owner’s permission. However, fair use is a defense to copyright infringement, not a right. Moreover, whether fair use applies and protects a photographer from liability can only be determined by a court of law, once a copyright infringement action has been filed. Nevertheless, understanding the fair use doctrine is helpful for purposes of assessing the risks involved in photographing street art.
To determine whether the fair use defense applies in a copyright infringement case, courts will analyze the following factors:
(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.
See 17 USC Section 107.
When determining whether fair use applies, perhaps the most important of these factors is the “purpose and character of the use.” This factor requires courts to first determine whether the copyrighted work was simply copied or cut and pasted into another work, or if it has been used to create a completely new work (often referred to as a “transformative use”). A transformative use is more defensible than a simple copy. Second, courts consider whether the infringer used the copyrighted work for a commercial or nonprofit/educational/personal purpose. Even an exact copy of a mural, for example, may qualify for the fair use defense, if it was used for a personal or educational purpose (e.g., hanging the picture of the mural in the photographer’s own personal home, or taking the image to a classroom for a lesson). On the other hand, a commercial purpose most commonly involves the sale or use of a photograph for advertising purposes. Exact copies of murals cannot be used by photographers for a commercial purposes, and so if a photographer intends to sell the image or use it for personal advertising, then the street art must have been used in a transformative way.
For example, in 2014, the singer/music artist Sara Bareilles was photographed in front of a street mural by Maya Hayuk, “Chem Trails NYC.” That image was used by Bareilles and her record company for various advertisements and tour/album promotional materials. Hayuk sued Bareilles for copyright infringement.
The Bareilles lawsuit settled, and the court made no determination on whether the use was fair. However, considering that all of the mural was used (see factor #3), and that the use was commercial in nature (see factor #1), it is likely that the fair use defense would not apply to the Bareilles case.
The second factor listed above examines the nature of the work. Street art is public in nature, and so this factor is less likely to be as strong in copyright infringement cases involving street art. Similarly, street art is rarely intended to be sold for private use. As a result, courts are less likely to take into account the fourth factor, which considers the infringement’s effect on the market for or value of the original. One possible way that courts may consider the fourth factor in cases involving street art, however, is if the copyright infringement limits the ability of the street artist to sell reproductions of his own public work for a different private purpose, which then measurably affects the value of his work. For example, Bareilles’s commercial use of the mural, without permission, may have adversely affected Hayuk’s ability to sell the right to use the mural in the promotional materials of a different singer/music artist or for another purpose altogether. Along this same line of reasoning, an argument could possibly be made that the infringer actually increased the value of the street artist’s work, all of which would be considered by a court when determining “fair use.”
In some cases, photographers are not using street art in their images for a commercial purpose. Many people photograph street art for their own personal enjoyment, or for the personal enjoyment of clients, often subjects in the photo itself, who use the photograph for personal, non-commercial purposes (e.g., wedding family albums). Under such circumstances, the use typically is not deemed commercial and does not degrade the value of the original street art. But many photographers use street art images of their clients to promote/advertise their own work. Perhaps the photograph is submitted into competitions, wins awards, and suddenly, the image is deemed to have been commercialized. At that point, the question becomes whether the photograph qualifies for transformative use. Unfortunately, though, there is currently no way to definitively measure when infringement ends and a new work begins.
To avoid a copyright infringement action, photographers must, therefore, be mindful of a few general benchmarks when photographing street art: (1) whether the street art is copyrighted or copyrightable (perhaps try to find out whether the mural was painted with permission or qualifies as vandalism); (2) if the image uses the street art in a “transformative” or minimal way (the more complex the image is, the more elements embedded in it, the better); and (3) how the photograph will ultimately be used or sold. Photographing street art for commercial purposes necessarily carries its risks, but these guidelines may help you avoid or defend a possible legal action resulting from shooting street art.