Group A
What rights do graffiti writers and street artists have over their images, specifically if their work is photographed and used online?
In the context of street art and graffiti, it’s particularly important to underline the importance of copyright. In fact, a piece of art is protected by copyright laws when it’s fixed in a certain format and it’s original enough in its artistic nature. Once this is established, credits are always to be given to the author. This rule applies for the protection of art when photographed as well as for images used online. Following the provisions of the Copyright Directive[1], the only exceptions to the use of artwork on the web are: transient or incidental copying as part of a network transmission and use for the benefit of disabled people. It’s also worth pointing out the fact that even when an artwork is made by an unknown author – in this case we talk about ‘orphan work’ – the piece of art will still be protected. In relation to photographed artwork and images used online, the crucial issues are whether approval has been given or not and if the use is a commercial one.
When permission is not given, copyright issues will rise depending on what the work is used for: research or commercial use. According to the Copyright Directive[2], when the use is the one of ‘fair dealing’ – which means that the artwork is used for research purposes – there is no infringement. On the other hand, when the use is a commercial one, there is an infringement of copyright. An example of the second situation, would be the case of Ahol, American-based street artist, who created a mural in Miami. His artwork was used for an advertisement and other commercial purposes by the company American Eagle without permission. The vital argument was that the company illegally tried to gain possession of the artist’s idea and invention. Another case concerns the street artist Stik, who recently reached a settlement with a company after finding out that they used one of his pieces without authorisation. Moreover, the photographer Peter Rosenstein published a book entitled “Tattooed Walls” containing photos of graffiti in New York. His argument that the murals were in public space and fall under the ‘fair use’ doctrine – American terminology for ‘fair dealing’ – didn’t convince the majority of the city’s street artists who sought a settlement from Rosenstein.
Nevertheless, sometimes it’s difficult to establish to what extent the use is commercial and whether this is breaching the artist’s rights or not since, one could argue, it all depends on the conception of street art. Is it not the real concept and essence of street art and graffiti to be accessible to anybody in any possible way? The street becomes the art gallery and passersby are the spectators in this huge exhibition. Arguably, under copyright issues, this has no importance at all since the walls are just another surface on which to create a piece of art and, therefore, street art deserves the same protection. It’s all about the respect of someone’s work and passion, in the end, regardless the traditional view of what is art and the law should deal with it. Furthermore, some scholars such an Enrico Bonadio[3], expert in Property Law, stated that even illegal graffiti deserves copyright protection. Hence, it’s important to remind us that the point of view that should always be adopted is the one of the artist and the protection that he or she deserves. This is the approach that could bring to an actual progressive view of the law in relation to street art.
[1] Directive 2001/29/EC of the European Parliament.
[2] Ibidem.
[3] Who owns Street Art?, September 2014 [http://www.city.ac.uk/news/2014/sep/who-owns-street-art]
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