Legally Speaking: Street Art (Pt 1)

Legally Speaking: Street Art (Pt 1)

Copyright Risks in Street Art Photography

Street art has gained credibility as a legitimate way for artists to communicate their works to the public outside of the confines of the mainstream art world.

The art takes various forms, ranging from bright alleyways to large-scale murals, sanctioned and unsanctioned alike. Walk down Hosier Lane in Melbourne or through the back streets of Fitzroy, and you’ll find walls transformed into vibrant canvases—some commissioned by local councils, others appearing overnight without permission. It’s a dynamic, ever-changing gallery where the admission is free and the artwork is accessible to everyone.

More than ever before, photographers are an essential part of this scene. Known as paint spotters, they spend their spare time chasing and documenting new pieces as soon as they go up. These dedicated photographers serve as the archivists of an inherently temporary art form, capturing works that might be painted over, weathered away, or removed within days or weeks of their creation. But this documentation comes with legal complexities that many photographers don’t anticipate until they find themselves on the receiving end of a legal letter.

A consequence of this enthusiastic documentation is the raft of legal issues that could potentially arise for photographers of street art. Imagine the following scenarios: You photograph street art and reproduce it on a canvas with other images that you superimposed to create ‘art’ which you sell at a gallery, only to receive a letter of demand from the street artist’s lawyer claiming a share of the sale and threatening legal action if you don’t immediately cease sales and hand over your profits.

Or you conduct a commercial shoot for a fashion magazine in a Melbourne alleyway, and in the background of the shot is some striking street art that perfectly complements your composition—will publishing these photographs be an infringement of copyright, and what if it’s impossible to determine who created the art? Perhaps you’ve been taking photographs of street art, framing them beautifully, and selling them at local markets or through your website, when an artist contacts you demanding that he or she should have a right to be named as the creator of the work, claiming you’ve infringed their moral rights. These aren’t hypothetical situations dreamed up by overly cautious lawyers—they’re real scenarios that have led to legal disputes, settlements, and court cases in Australia and overseas.

What are moral rights anyway?

Many artists and photographers have heard of the concept of moral rights but there is considerable confusion as to what the phrase actually means. First, it must be pointed out that moral rights are separate to copyright, even though they both fall under the umbrella of intellectual property law. While copyright law is essentially economic in nature, in that it recognizes the right of the copyright owner to be remunerated for uses of their work, moral rights are personal in nature as they recognize the connection between a creator and his or her work and, to an extent, protect that connection.

Put in other terms, they recognize that art is or can be seen as an extension of the artist’s personality—the work carries something of the creator’s identity, reputation, and creative vision. Therefore, it is critically important to note that just because artworks are in a public place does not mean that you will escape any potential risk of infringing someone else’s copyright or moral rights. The wall might be public, the alleyway might be accessible to anyone, but the artwork painted on that wall remains the intellectual property of the person who created it.

Another brick in the copyright wall

Street art photography has become increasingly popular, and for good reason. Street art is colourful, raw, controversial or witty—and because of its transient nature, it is best recorded through photographs. This ephemeral quality is part of what makes street art photography so compelling; you’re capturing something that might not exist tomorrow. While the term ‘street art’ brings to mind graffiti artists spraying on walls in the dead of night, it also encompasses paintings, stencils, paste-ups, stickers, installations, eco-graffiti, commissioned murals, and ‘tags’—which involve stylized representations of the artist’s name or pseudonym.

It doesn’t stop there, either. Some street artists even create structures out of plastic crates or perform what is called ‘yarn bombing’—where items in public, such as trees or bike racks, are covered in colourful crochet. The diversity of street art means photographers encounter an equally diverse range of copyright situations, each with its own legal nuances.

Walls as a canvas

Australian copyright law permits you to photograph buildings and sculptures if they are permanently situated in a public place—so you can photograph the Melbourne Arts Centre spire or a public sculpture in a park without seeking permission.

However, this exception does not extend to photographing artistic works such as street art, and for photographers this creates a significant trap. If someone paints something on a wall, it’s protected by copyright law like any other painting or artwork. Under the Copyright Act 1968 (Cth), artists have the exclusive right to reproduce the artwork whether on a canvas, on the internet or otherwise, no matter what surface that artwork is painted on. When you photograph street art, you are potentially reproducing the artwork and this could be infringing the copyright in the work. True that the art is on a wall.

True that you may not be trespassing. But that does not matter. Even if the street art is not legal, someone still owns copyright in it and that is all there is to it.

Copyright laws generally define all two dimensional art as artistic works. The street art could be the prominent feature of the photo, or captured incidentally in the background. While the risk of infringement is lessened if the art is in the background or merely incidental, both situations may become problematic to the photographer if the original artist believes that the photograph has infringed his or her copyright or moral rights. It’s far more likely that an artist would have an issue with a photograph that features their street art being reproduced and exploited for commercial purposes.

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 ‘substantial reproduction’—there is no such thing as ‘the 10% rule’. This is because the legal test for copyright infringement is based on the quality rather than the quantity of what has been copied. Another copyright issue that is pertinent to street art is that it can often be difficult—if not virtually impossible—to identify and contact the author. Sometimes an artist creates their artwork under a pseudonym to protect their identity. The important thing to note here is that copyright will still subsist in the work, even if the author cannot be identified.

A case on point: when street art becomes evidence in court

While you may not think photographing street art is a pertinent legal issue (after all, it’s on the streets and publicly displayed), it was recently the basis of two law suits in a District Court. In August 2014, artist Maya Hayuk applied to separately sue two companies, a luxury handbag and accessory label and a major music label, for copyright infringement of her art. In both cases, Hayuk stated the defendant companies had prominently displayed her work in their promotional material without her permission.

This is the wall:

Hayuk had originally painted her street mural, titled Chem Trails on a wall in New York as part of a 50th birthday tribute to another artist. The wall was apparently 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.

In her legal action against the handbag label, 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 the fashion label’s products. Similarly, in her law suit against the music label, she complained that one of the record company’s musicians had used her street mural to promote her upcoming album and tour. Aaron Silverstein, Hayuk’s attorney, commented that Maya is an extremely prolific and hard-working artist and that 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 was suing the companies for, amongst other things, profits gained from the use of her work, as well as seeking an injunction order to stop all use of her mural.

On the basis that Hayuk allegedly licenses her artwork for use in circumstances such as those it was actually used for, she argued that those uses had caused the artist 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.

The two defendants are hardly the first big corporations that got themselves in legal trouble for using photos of street art without authorisation. In 2014, an American clothing chain was sued by Miami-based street artist who goes by the name of Ahol Sniffs Glue for incorporating Ahol’s signature ‘droopy eyes’ murals in 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 whilst holding a spraying can, as if to imply that the model had created the artwork himself. Similarly, in 2007, a group of Bronx-based graffiti artists brought actions against a photographer who published a graffiti book featuring their art. The message is clear: if you are taking photos of street art as a dominant feature of your photographs you should generally get permission from the copyright owner. The risks are usually heightened if you then go on to sell or use the photograph featuring the artwork commercially.

What about other artworks?

Street art is not the only type of art that can be captured by copyright laws and the principles about featuring other people’s artwork in your own photographs also apply to ordinary paintings. For example, you could be infringing copyright in a painting if it features in the background of a photograph which is used for commercial purposes, like publication in a book, newspaper, magazine or online. In this situation, you can own copyright in a photograph whilst simultaneously being in breach of someone else’s copyright by using that photo. Melbourne-based artist, Rowena Martinich, is as familiar with copyright concerns as most photographers. She has enforced her copyright on a number of occasions, including one occasion when her paintings were published in a magazine without her permission. The photographer should have known better. An important factor is whether the artwork in the photo is the main feature of the shot. If it’s incidental, it might not be an issue.

Moral rights for street artists

Attributing street artists and treating work with respect is a separate matter to copyright. Copyright is an economic right that is associated with reproducing and exploiting the work that can be said to have a commercial value. On the other hand, displaying the correct artist’s name on or next to the work and treating the work with respect generally comes under the umbrella of moral rights, which are personal rights. The original author always keeps these rights—they cannot be assigned or sold. The two moral rights that are most relevant to street artists are the right to be attributed and the right to prevent derogatory treatment of works (for example, painted over, altered or moved to another place if the art was intended to be site specific when it was created). Notably, there is also a right against false attribution. The right of attribution is an interesting issue for graffiti artists as many of them wish to remain anonymous, hence the use of pseudonyms.

Reasonableness as a defence

Moral rights laws allow for a general defence of reasonableness, meaning that even if you have infringed someone’s moral rights, you may not breach someone’s moral rights if your conduct in relation to the work was reasonable. Photographers should be mindful of this defence when taking photographs, as what is considered to be ‘reasonable’ may be determined by reference to several factors. These include the context, manner and purpose for which the work was created, the nature of the work, and the accepted industry practice.

The Meskenas case: when silence becomes expensive

One of the earliest moral rights decisions in Australia is the case of Meskenas v ACP Publishing Pty Ltd. This case shows that publishers as well as photographers can get into legal ‘hot water’ for not attributing the author of paintings which feature in their photos, and demonstrates that photographers need to be mindful of keeping records of the names of the artists whose works may appear in their images.

The dispute involved Woman’s Day magazine, which had published a photograph of Princess Mary of Denmark standing beside a portrait of renowned heart surgeon Victor Chang, painted by 89 year old artist, Vladas Meskenas. The caption incorrectly attributed the painting to another artist. Meskenas was distressed about this wrongful attribution and repeatedly contacted the magazine seeking an apology. When the magazine did not respond to his calls and legal letters, Meskenas issued legal proceedings claiming that the magazine publisher had infringed his moral rights.

While the magazine had argued that it had not intended to make the error, the artist won the case and the magazine publisher was found to have falsely attributed the artist. As a result, the magazine publisher (ACP Publishing Pty Ltd) was ordered to pay the artist a sum of $9,100. Out of this, $8,000 was to compensate the artist for a breach of his moral rights. The judge was influenced by the evidence that no apology was provided by Woman’s Day, despite approximately 90 calls being made by the artist to the magazine.

The judge criticised the publisher’s ‘consistent failure to provide the applicant with the apology and retraction that he had requested’, which justified an award of ‘exemplary damages which are punitive in nature’. So far, there have been very few court cases involving moral rights. When moral rights have arisen in court, it is usually in the context of a copyright action. The Meskenas case shows that where copyright law fails, artists can still have an action in moral rights.

Mekenas’ lawyers submitted that the problem could have been avoided with a simple apology and proper attribution, stating ‘if there had been a retraction and apology there would have been no court case’. One of the lessons from this case is that the publisher can also be liable for infringement of moral rights. Photographers should be mindful that if they feature other people’s artwork in their own photos, they need to keep records relating to who painted them to avoid this legal issue from arising.

Conclusion

Ultimately, intellectual property laws relating to photography of street art are largely untested in Australia. Factors that are likely to be relevant are the prominence of the street art in the photo, whether the photo is used for commercial purposes and whether that artist has been properly attributed. Street art can look great as a feature in photography, but be wary. Just because it is displayed in a public space does not mean that you can freely take photographs of the work and reproduce it as your own. At Sharon Givoni Consulting, the focus is on turning Legal Ease, not Legalese®—practical, commercial advice that helps photographers navigate copyright and moral rights without sacrificing their creative vision.

Take Away Tips

1. Whether street art is illegally created or legally commissioned, the artist will own copyright in what they paint.
2. When it comes to reproducing someone’s artwork, there is no set percentage that can be applied to decide whether copyright infringement has taken place. It is generally a question of fact and degree.
3. Taking a photograph of a copyrighted work can amount to copyright infringement depending on a number of factors, including the focus of the image.
4. If you sell photographs of street art, the artists may expect a fee. Moreover, the law may entitle them to get one.
5. Moral rights are personal in nature (you can’t sell them).
6. If you decide to use street art as part of your photograph, ensure that you properly and accurately credit the street artist.
7. Be aware that not all artists will be happy with your use of their art.
8. The principles that apply to using street art in photography also apply to ordinary paintings.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.