I have taken many photos of graffiti art that I would like to frame and sell. Being an artist myself, I respect any and all artists rights, however I do not know the artists and I have no way of contacting for permission. What are the laws concerning sale of photos of publicly viewable graffiti art? Seems the law may be a little fuzzy in this area…
Graffiti is absolutely, undeniably, completely, utterly, totally and irrefutably granted sovereign federal copyright protection under USC Title 17 Section 101+.
Using graffiti images in your pictures without express written consent from the copyright holder, is an absolute violation of federal law, and exposes you to catastrophic liability, as follows:
– Cost to defend and win a copyright lawsuit: $500,000 (avg)
– Cost to defend and lose a copyright lawsuit: $500,000 (avg) + up to $150,000 (statutory), or more
– Cost to defend and settle a copyright action: $8,000 to $15,000 (avg), per violation
– Criminal penalties that can be imposed by the government: Up to 5 years in prison and $250,000 fine (first offense)
The bigger question everyone here should be asking is, why WOULDN’T the graffiti artist sue you?
Because they "might be prosecuted for a misdemeanor crime?"
Copyright is a federal issue. And under federal law, the copyright holder could seek statutory damages of up to $150,000, without proving that you caused them ANY actual damage. Additionally, if they win… you have to pay for their legal fees and courts costs.
They could walk away with 100’s of thousands of dollars of your money.
So, thinking a $200 fine for committing a misdemeanor is a "deterrent?" Umm. Unlikely.
A lawyer would take the case, for free… if nothing else, he/she is going to get tremendous publicity out of it…
Let alone the fact that, IF YOU LOSE THE CASE, YOU HAVE TO PAY THE GRAFFITI ARTIST’S LEGAL BILLS.
Someone wrote that you can "do anything you want with pictures of statues, because they’re outside."
I don’t mean to sound rude… but this statement is completely, and totally wrong. Statues, models and virtually all three-dimensional works of art are absolutely copyrightable. And taking photographs of those statues, without consent of the copyright holder is violating that holder’s exclusive rights of derivative creation (USC Title 17, Sections 101 – 173)
Buildings can also be copyrightable, in various circumstances.
Any art that is ON the building is absolutely copyrightable.
Additionally, "public domain" does not mean "outdoors." Public domain is currently defined as a work that has existed beyond its term of copyright protection… which is currently defined as the life of the artist, plus 70 years.
Thus, the only way graffiti could absolutely be irrefutably defined "public domain," is if it was painted on the wall before 1964.
So to close…
You absolutely MUST gain permission from the artist, before you incorporate their images, in your works. Period.
Hope this helps…
G.C. Hutson, Chief Executive and Senior Partner
Sadien Intellectual Property, Inc.
http://www.Sadien.com
February 21st, 2010 at 10:39 pm
Just pray the graffiti artists don’t see you selling them and you’ll be fine. They’re mostly hobos anyways, they won’t find out.
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February 21st, 2010 at 11:20 pm
If the "art" is graphically portrayed on a public building, I think you have no issue.
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February 21st, 2010 at 11:29 pm
Considering that graffiti is also vandalism punishable by law I doubt the "artists" are going to come forward.
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February 21st, 2010 at 11:59 pm
Since most of the Graffiti Art is done illegally on other people’s property I don’t see where you’ll have a problem. It’s in the public domain after all.
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February 22nd, 2010 at 12:08 am
Art on a public wall is "in the public domain." The artists cannot expect or collect copyrights or royalties on this. Nor can the building owners.
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February 22nd, 2010 at 12:56 am
The law isn’t fuzzy here, it’s actually very clear, but I can see what you’re saying; since they did it illegally, they can’t claim copyright.
When you take a picture of a statue, you retain copyright of that photo; the fact that it’s of another piece of art is irrelevant and this is especially the case when the photo is taken outside in a ‘public’ setting. So, you have every right selling images you take in public… what’s funny, is that for those painters to complain, they’d have to admit they broke the law and illegally painted the grafitti. lol.
In general, because it’s in the public place and a public item (the wall or building), you retain copyright and can do with the photos as you please.
Here’s a very good, albeit lengthy and non-layman article on the subject: http://williampatry.blogspot.com/2008/02/photographs-and-derivative-works.html
To Sadien below… he must forget about: SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301 (S.D. N.Y. 2000). The courts have ruled in favor of the photographers many times, especially in this circumstance…. so your claims are a tad embellished.
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February 22nd, 2010 at 1:39 am
Graffiti is absolutely, undeniably, completely, utterly, totally and irrefutably granted sovereign federal copyright protection under USC Title 17 Section 101+.
Using graffiti images in your pictures without express written consent from the copyright holder, is an absolute violation of federal law, and exposes you to catastrophic liability, as follows:
– Cost to defend and win a copyright lawsuit: $500,000 (avg)
– Cost to defend and lose a copyright lawsuit: $500,000 (avg) + up to $150,000 (statutory), or more
– Cost to defend and settle a copyright action: $8,000 to $15,000 (avg), per violation
– Criminal penalties that can be imposed by the government: Up to 5 years in prison and $250,000 fine (first offense)
The bigger question everyone here should be asking is, why WOULDN’T the graffiti artist sue you?
Because they "might be prosecuted for a misdemeanor crime?"
Copyright is a federal issue. And under federal law, the copyright holder could seek statutory damages of up to $150,000, without proving that you caused them ANY actual damage. Additionally, if they win… you have to pay for their legal fees and courts costs.
They could walk away with 100’s of thousands of dollars of your money.
So, thinking a $200 fine for committing a misdemeanor is a "deterrent?" Umm. Unlikely.
A lawyer would take the case, for free… if nothing else, he/she is going to get tremendous publicity out of it…
Let alone the fact that, IF YOU LOSE THE CASE, YOU HAVE TO PAY THE GRAFFITI ARTIST’S LEGAL BILLS.
Someone wrote that you can "do anything you want with pictures of statues, because they’re outside."
I don’t mean to sound rude… but this statement is completely, and totally wrong. Statues, models and virtually all three-dimensional works of art are absolutely copyrightable. And taking photographs of those statues, without consent of the copyright holder is violating that holder’s exclusive rights of derivative creation (USC Title 17, Sections 101 – 173)
Buildings can also be copyrightable, in various circumstances.
Any art that is ON the building is absolutely copyrightable.
Additionally, "public domain" does not mean "outdoors." Public domain is currently defined as a work that has existed beyond its term of copyright protection… which is currently defined as the life of the artist, plus 70 years.
Thus, the only way graffiti could absolutely be irrefutably defined "public domain," is if it was painted on the wall before 1964.
So to close…
You absolutely MUST gain permission from the artist, before you incorporate their images, in your works. Period.
Hope this helps…
G.C. Hutson, Chief Executive and Senior Partner
Sadien Intellectual Property, Inc.
http://www.Sadien.com
References :
February 22nd, 2010 at 1:48 am
Pamela is spot on with this.
Just like if I write a "colorful" poem on a bathroom stall and someone else uses it and makes money I can’t sue them (assuming I made it up to start with).
The one exception is the internet. If you publish something on the internet it is considered "published" and does fall under Copyright law to my understanding (as long as you give notice that the material is yours and not intended for public domain use).
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