Street Art & Copyright in Australia

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Street Art, Copyright, and Photography in Australia: Incidental vs Featured — What Every Photographer Should Know

Street art lures photographers for its vivid impact. However, while it enlivens urban shoots, it also presents a unique legal landscape. In Australia, snapping and using images of street art—especially for commercial purposes—raises important copyright and moral rights issues every photographer must understand.

The Legal Landscape: Street Art and Copyright Law in Australia

Under the Copyright Act 1968 (Cth), street art—including murals, stencils, and graffiti—is protected as an “artistic work”. Copyright protection arises automatically once the work is created, regardless of whether it was legally commissioned or was unauthorised. There is no registration required—once a work is on a wall, the artist owns copyright unless there is a contract stating otherwise.

Importantly, even if a property owner commissions an artwork, they do not own copyright in it unless specifically agreed. The rights remain with the artist as a default.

Commercial Use—Where Problems Arise

If you photograph street art to use in commercial settings—such as selling prints, advertising, merchandise, or editorial content—you could be infringing the artist’s copyright. The risk intensifies if the artwork is the primary subject of the photo. Using street art without permission (even if you credit the artist) can result in claims for copyright and moral rights infringements.

Moral rights—separate from copyright—entitle artists to be credited, to object to derogatory treatment or distortion of their artwork, and to avoid false attribution. These rights remain with the artist, even if they sell their copyright or create works anonymously.

‘Incidental’ vs ‘Featured’ Use Explained

Australian law allows certain exceptions for “incidental” inclusion of copyrighted works, such as when the art appears by chance in the background of a photo. If the artwork is incidental (for example, blurry or in the distance and not the main focus), legal risk is lower—but not eliminated. If the work is featured—central and clearly depicted—then risk is much higher.

There is no strict “percentage” or “10%” rule—it’s about whether a substantial part has been copied, which depends on quality as much as quantity.

Even background use can create legal problems if the image is used commercially, or if the artist objects to its portrayal.

Fair Dealing and Defences

The fair dealing defence may apply for use such as criticism, review, reporting news, research, or parody. However, this does not extend to most commercial or editorial photography.

Case Study: 5Pointz

In the landmark US case Castillo v G&M Realty, artists won US$6.75million after numerous works at the 5Pointz complex in New York were destroyed. The court recognised the “stature” of their works and awarded significant damages, reinforcing the seriousness with which courts can treat street art.

Australia so far lacks a comparable, high-profile precedent; most disputes are settled quietly and confidentially.

Generative AI and New Legal Risks

With the rise of generative AI, there are new issues for photographers and editors:

AI-generated backgrounds or edits that replicate or alter existing street art can infringe both copyright and moral rights if not handled with care.
The law hasn’t yet directly addressed all these scenarios, but recommendations have been made for new legislation to clarify creators’ rights regarding AI-generated and AI-modified content.
If you use or outsource AI tools for editing, ensure your workflow includes human review for copyright compliance.

Practical Tips for Photographers

Get Permission: Where the art is the primary subject (especially for commercial use), seek a licence from the artist or their representative.
Keep It Incidental: For commercial work, compose shots so art is background, not the focus.
Credit the Artist: Good practice and helps meet moral rights obligations—though it’s not a substitute for consent.
Be Careful Editing: Avoid alterations that could damage the artwork’s reputation or integrity.
Document Approvals: Keep written records of consents for legal protection.
Stay Updated: Watch for evolving changes in copyright law, especially with AI and digital media.
Seek Legal Advice: Where in doubt, consult a specialist IP lawyer—lawyers like Sharon Givoni can ensure you’re protected in this evolving area.

Frequently Asked Questions (FAQs):

Is street art protected by copyright in Australia?
Yes, street art is protected automatically under the Copyright Act 1968 as an “artistic work,” whether it was commissioned or not.

Can I photograph street art for personal use?
Generally, yes—but you risk infringement if you publish, sell, or use the photo commercially, especially if the art is the main focus.

What counts as “incidental” use of street art in photos?
If the art appears only in the background, out of focus, or is not the main subject, this is more likely to be treated as incidental, reducing (but not eliminating) legal risk.

Do I always need the artist’s permission?
If the art is featured and you’re using the image commercially, yes. For personal use, risk is lower but still exists.

Can editing or altering a photo of street art breach the law?
Yes, if the edit distorts the artist’s work or damages their reputation, it can breach moral rights—even if you had permission to photograph it originally.

Are there any exceptions for use in news, review, or parody?
Some exceptions exist for fair dealing, including criticism, review, or reporting news, but these are limited and don’t cover most commercial uses.

What about using AI to alter or replace street art in my photos?
AI tools can raise new copyright and moral rights risks, especially if the AI output closely resembles a protected artwork or misrepresents the original.

Who can help if I’m unsure?
An intellectual property lawyer, especially with experience in art and photography (like Sharon Givoni), can advise on permissions, risks, and contracts.

Turning Your Ideas into Assets—How We Can Help

Street art adds vibrancy—and copyright complexity—to urban photography. At Sharon Givoni Consulting, we specialise in intellectual property law for photographers, artists, brands, and creative businesses all across Australia. Our team can review your contracts, advise on permissions, negotiate licences, and defend your creative rights—so you can shoot and share confidently, knowing your legal risks are minimised.

With more than 20 years of experience, Sharon Givoni is a recognised leader in the field of IP law and has guided countless clients through copyright, licensing, and dispute resolution—both in and out of court. We help turn your creative ideas into protected business assets.

Get in touch to find out how we can protect your work and your reputation—now and into the future.

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