I decided to locate Summit 6 Legal’s law offices in Denver’s RiNO district because after spending most of the first decade of my legal career in drab, brown offices inside stuffy, 17th street high-rises, I want to build a legal services firm in a dynamic environment rife with opportunities to collaborate with and draw inspiration from the creative and open-minded companies, entrepreneurs, tech jocks and artists the RiNO district is known for. In that spirit, I was excited the other day when I was approached by two young tech company employees with an interesting question. As a side venture, they photograph public art, specifically graffiti art, then play around with various photography processing software and finishing mediums to create something new and very cool, such as prints on anodized metal plates. These guys are exactly the types I was hoping to be around! As an amateur photographer myself, I was intrigued with some of the cool images they were thinking about producing; as a lawyer, I was thinking of the intellectual property issues, specifically, the question of copyright laws and the potential issues surrounding their photography.
I. COPYRIGHT BASICS.
Copyright law and its nuances related to public art is a complex topic, too twisty to explain in a single blog post, however, before exploring the applicability of copyright law to photographs of graffiti art, a basic explanation of what copyright law protection is, the benefits of copyright law protection and the means of obtaining copyright law protection, is necessary. WHAT IS COPYRIGHT PROTECTION? Copyright is protection under Title 17 of the U.S Code afforded to creators of original works of authorship (authors). By virtue of copyright protection, authors have exclusive rights to copy their work, create derivative works and transfer those copies and derivative works. A copyright owner can transfer any or all of those exclusive rights. Artists who create visual works may be entitled to rights of attribution and/or integrity that may afford additional levels of protection. I’ll explain those complexities in a future blog post on copyright law related to graffiti art and other visual works. WHAT TYPE OF WORKS QUALIFY FOR COPYRIGHT PROTECTION? Under the letter of the law, copyright protection attaches automatically to any original work of authorship that is fixed in a tangible medium of expression. This includes but is not limited to: graphic works such as photography; literary works; sound recordings, music and lyrics; architectural works; motion pictures; and other AV works (think video games).
HOW AND WHEN DOES COPYRIGHT PROTECTION ARISE? In short, copyright protection arises automatically when a work is created and creation occurs when the work is first put into a fixed medium. For purposes of copyright law, the key to “creation” is the copy. For purposes of copyright law, a “copy” is a medium from which the work can be read or perceived immediately and directly, such by opening a book or looking at a painting or by using a machine, such as an e-reader or computer. A fleeting occurrence such as an impromptu and unrecorded breakdance battle on Denver’s 16th Street Mall, while it may be art, and can certainly be perceived of directly by all innocent bystanders, is not protected by copyright law unless it is copied or fixed, i.e., created. No formal registration with the US Copyright Office or publication is required for copyright protection to attach to a work of art in any form, so long as there is indeed a form.
II. COPYRIGHT ISSUES RELATED TO GRAFITTI AND PHOTOGRAPHY OF GRAFITTI.
Thinking about the basics of copyright law described above in the context of my new friends’ photography project raised numerous initial questions. Graffiti certainly qualifies for copyright protection, but for whom? Are walls a tangible fixed medium of expression, or does creation, for purposes of copyright, occur when the graffiti is photographed? Does it matter that graffiti may be illegal and undesirable in many cases? What if a building owner or the City commissions the graffiti?
Over the last couple years, the question of whether graffiti is protected by copyright law has been the subject of several lawsuits but there is very little published case-law on point. Many of these suits settled before the courts rendered a final opinion. Several are currently pending. The context is typically something like this: large company photographs an advertisement in front of, or creates advertising campaign around, famous graffiti; graffiti artist or owner of copyright who commissioned the graffiti sues for copyright infringement.
Copyright protection does apply to graffiti art. That it may be on a public structure and/or illegal and non-commissioned doesn’t prevent copyright protection from arising. Copyright protection arises automatically whenever an original work of authorship is fixed in a tangible medium (I.e., is first copied) and placing the graffiti on a wall is a fixation giving rise to copyright protection even if the installation is illegal under municipal laws. Courts have found that while the artist may not own the physical medium (i.e., the wall) and therefore the owner of the physical medium can freely sell the building or destroy the graffiti or erase it, the artist does in fact own the copyright (i.e., the right to copy the image) unless the artist sold or licensed the copyright.
Protection for graffiti artists under U.S. copyright law is a newer issue legally that is growing as graffiti becomes an art-form appreciated by the public at large, especially in certain areas of cities. Artists are filing suits against large companies that are profiting off of their work. Companies are settling these cases. What does this mean for photographers of graffiti art? Technically, photographers should ask permission to photograph graffiti, especially if they are creating and/or selling derivative works. Is that realistic? It depends. Many of the walls in RiNO and around downtown Denver were commissioned by the building owners and in some cases, organizations affiliated with the City. In those cases, one could ask the building owner for permission and quickly learn whether the building owner acquired the copyright from the artist or whether the artist retained the copyright. On the other hand, if graffiti is illegal street art, a photographer may have a tough time tracking down the artist who owns the copyright but in such cases, someone does own the copyright which includes the right to produce and sell derivative works. Someone selling derivative works without the permission of the copyright owner is risking a suit for damages and if a photographer creates something that becomes a big hit, the potential damages could be significant. When asked for permission, a copyright owner will either say Yes, No, or Yes if you pay a royalty. In a Yes or Yes If scenario, the photographer and copyright owner should enter a copyright assignment agreement or license agreement. Summit 6 Legal can help artists and copyright owners draft copyright license agreements and copyright assignment agreements that protect the interests of the owner, or the user, and reflect the deal surrounding copyrighted works, including graffiti art. We can also help creatives who desire to remain confidential with identifying building owners and approaching the building owners regarding the right to copy graffiti on their buildings.