Graffiti and copyright

by Walter Olson on September 10, 2008

“For the graffiti artists, copyright cases are a common problem. ‘It is very disappointing that copyrights of our work are often not respected’, [says German graffiti artist CanTwo,] who received damages from a music label using one of his pieces illegally some years ago. ‘Strangely enough, but people think that because our work is public and it is sometimes illegally painted, they could use it any way they want.’” (Markus Balser, WSJ Law Blog, Sept. 9).

{ 8 comments }

1 Deoxy 09.10.08 at 10:14 am

This actually gets quite messy, from the common man’s perspective, anyway, especially when it’s “illegally painted”.

So, they painted it on something someone else owns, without their persmission. So, who owns it now? Um, the guy who owned it before it got painted, one would think…

Also, if it’s in public, can’t I take a picture of it? What if someone graffitis the Statue of Liberty? I can take a picture of that, right? See previous point about ownership…

Or I might want to document the damages to my property…

But, then, the guy who painted it really is (in some cases, anyway) an artist, and copyright law would seem to apply… sort of. Maybe.

Ick.

2 Mark Biggar 09.10.08 at 12:55 pm

There is a difference between owning the actual physical object and owning the Copyright to the art on it. This issue comes up over murals all the time and is well settled. And there is a difference between taking a photo for documentation or even use in a newspaper article and using the art for an album cover. The former two examples are most likely “Fair Use” while the Album cover is definitely not.

3 nevins 09.10.08 at 1:41 pm

I’m thinking that the fair assumption is that the ‘artist’, such as he is, transferred any copyright to the property owner when he defaced the property without permission.
If there is prior agreement, i.e. permission by the owner to apply art, then they should probably settle the copyright in advance of any paint. If they fail to address copyright prospectively I’d be inclined to assume it is held by the owner of the physical property. The artist can not take his art from the property without damage or removal of some or all of the property. His removal would likely then be a theft or denial of use or access to the physical property. That being the case, the art, and associated rights stay with the physical property and that property’s owner.

And of course unconsented damage or defacement to property, whether public or private, is still punishable both civil and criminal. It matters not whether the defacement is considered ‘art’ or grafiti, or merely property damage.

4 iNonymous 09.10.08 at 4:06 pm

Taken to the logical extreme, a property owner would not be allowed to paint over a graffitti picture without permission of the artist.

5 Jim Collins 09.11.08 at 12:05 pm

I was going to side with the owner of the property owning the copyright to the graffitti just on a moral basis, until I remembered something. I had a photographer take some pictures for me last year. I paid the photographer and all of the expenses associated with getting the pictures. Why does the photographer own the negatives?

6 Timothy E. Harris 09.11.08 at 1:40 pm

Because you didn’t contract for them.

Photographers who work for an employer usually have “Work for Hire” employment contracts where the employer acquires the copyrights as well as the images.

Most freelancers keep the copyrights so they can sell an image more than once – but you can usually negotiate to get the copyrights and negatives as well if it matters to you.

If you don’t ask, then the creator ends up with the copyrights by default.

7 Adams Eaves 10.08.08 at 6:08 pm

It does kind of make sense that since their work is illegal and public, that people could use it however they wanted. But I guess if there’s a copyright on it there’s nothing you can do about it.

8 ace_pigeon 02.18.09 at 6:11 am

The thing is this… I totally respect “proper graffiti” that communicates the artist through spray media when it isn’t just a profanity. But, and speaking from the point of view of someone who is looking to use found graffiti that I have photographed for t-shirt prints, I think that by reproducing a graffiti artists work on the front of say a t-shirt which, lets face it, is a mass publicity tool (potentially) surely this is massive exposure for the grafitti artist in question and a strike for him/her as not onbly have they left their mark/artwork on a wall but they are now being recognised as an art form and surely that would blow any copyright issues out of the water?
Also – even if copyright was to be sought for the reproduction of this work – where the hell does one obtain the permission? Grafitti artists use pseudonames and symbols…
Is the ultimate answer to just ignore this work of genius and not use it to a fuller potential?
Plus (and forgive me for rattling now) surely if copyright was an issue then the person/council who paints over thus destroying the work is destroying the work! Therefore liable for damages? You can’t copyright a work of art that is temporary can you?

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