Copyright – Tangential Issues
Further below:
Publisher rights
Artists’ rights
Is displaying a photo of graffiti on this web site a breach of artist’s copyright?
GraffitiJunction.com does NOT assume a graffiti artist has no claim, whether or not the art was legally commissioned by public authority on public property, in one extreme, or illegal vandalism, at the other extreme.
We freely acknowledge even the illegal defacer has artistic and moral rights to his creation, despite the difficulty claiming them. And assuming, need I add, the activity is creative. We aren’t really talking here about serial defacers, or territorial taggers.
The issue is NOT, either, whether GraffitiJunction can profit from anonymous street art.
GraffitiJunction.com DOES NOT SELL images of recorded graffiti. We give them away (you can download them) – and that might infringe the artists’ rights.
Till it matters, or you complain, or (God forbid!) send a summons, we shall publish.
Can Graffiti Junction copyright its own photographic efforts?
An odd question, you might think.
Our photographs are specific representations of another person’s art, someone with possible legal copyright. Their artwork is not merely part of a street scene – it is the scene, the photo’s entire focus. This is the grey area. Repeating, I shall publish till it’s an issue, till it matters by impinging on an artist’s rights, reputation, or income.
Generally the lore of artistic rights and copyright suggests "yes, if an artist wishes they can pursue an infringer and claim their winnings." Of course, if GraffitiJunction is the claimed "infringer," even should you win you will still be considerably out of pocket.
I’m hoping artists will be delighted to see their stuff here, see GraffitiJunction.com as their web site, even send supporting material for publication, making this a much better place, more a community than mere photo album
Protecting Graffiti-Junction’s Rights
What follows is a supportive precedent (of which few exist, supportive or not) addressing the second biggest question websites like GraffitiJunction ask themselves: "Can GraffitiJunction claim copyright for artistic merit of (inherent in) its published images?"
Bridgeman Art Library v. Corel Corp. 
was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright because the copies lack originality. Even if accurate, reproductions require a great deal of skill, experience and effort, the key element for "copyrightability" under U.S. law is that copyrighted material must show sufficient originality.
And while we’re violating copyright, and/or claiming it in ignorance, here’s a direct lift from a .. err, eminently stealable source!
Graffiti and Copyright II
This question occurred to me when I was looking into the question raised at Graffiti and copyright
This definition as well as the full definition in the statute seems to me to encompass graffiti, since the above discussion seemed to come to some consensus that (even illegal) graffiti was copyrightable by the author. The statute also indicates that an author can assert these rights even if they do not have title to the original work or even the copyright any longer. The applicable bit of law is at Title 17 Section 113(d)
Does this give a graffiti artist the right to sue the building owner for violating their moral rights
- The law won’t act to enforce an illegal act or right. Thus if the graffiti is illegal the artist wouldn’t be able to sue the building owner. Also if he did he’d be admitting he painted it & would get sued for graffiti. AllanHainey
- Is there a named legal principal at work there? I’m saying that it is assumed that the artist/vandal is willing to admit to the graffiti act and pay any statutory fines and defend against countersuit, but if the vandal/artist decides to sue to enforce these rights, does the judge dismiss or summary judge under some principle, or do they let it go to trial? KWH
- If by "graffiti" you mean "murals painted illegally or without the consent of the wall owner" (legally produced murals, whether graffiti or not, do of course fall under the VARA), I would think that even if strictly speaking the artist may have rights granted by the VARA, he could not enforce them because if he tried to do so he’d face stiff fines for having "defaced" someone else’s property.
Do a Google search for
Lupo
I don’t know the name of the legal principle (& I speak from a UK POV so U.S.A. legal principles may be different) but its generally accepted that the law won’t uphold an illegal contract or support an illegal act (eg if a hitman did a killing, didn’t get paid & sued the guy who hired him the courts wouldn’t uphold this as breach of contract as they don’t recognise the original illegal act as valid). AllanHainey
- IANAL (of course) but it sounds like it might fit the definition of abuse of process
- Any other ideas, class? (No, Allan, we already called on you
KWH
Copyright – Publisher’s Rights
Where we are vulnerable
Our photographs are specific representations of another person’s art, someone with possible legal copyright. Their artwork, as presented here, is not merely part of a street scene – it is the scene, the photo’s entire focus. >
The argument runs that copyright is not infringed if a protected ‘artwork’ (trademarks, icons, etc.) are part of an overall scene and not the focus of the scene. The grey area where it becomes the focus is difficult to determine. It would be affected by the subsequent use of the photo that eventually attracted litigation.
Graffiti Junction contends that street art is not commissioned public art and is not in the category of public murals, for example.
Graffiti Junction’s Rights
Reading suggests many risks in publishing a photo collection. These notes from an article by the Australian Copyright Council can help you understand Graffiti Junction’s problem:
Permission to photograph a building
Generally, no. Although a building is protected by copyright, a special exception in the Copyright Act allows buildings to be photographed without permission. … It may sometimes be the case, as with photographs of people, that certain unauthorised uses of a photograph of a particular building may raise issues under other laws.
Permission to photograph artworks displayed in public places
The generally accepted interpretation of the relevant provision in the Copyright Act is that you may photograph a “sculpture or work of artistic craftsmanship” which is publicly displayed “other than temporarily” without permission. … You will generally need permission to photograph other public art, such as murals.
Do I need permission from people I photograph
A person’s image is not protected by copyright.
Privacy
It is generally not an invasion of privacy to take another person’s photograph. However, in some circumstances, you may be required to comply with the National Privacy Principles in the Privacy Act 1992 (Cth).
Excerpts from www.copyright.org.au’s Photographers ( and Copyright) – [GO11] ** We are not allowed to link you to the document – you will find it on the alphabetical list at the above link.
Can Graffiti Junction copyright its own photographs?
An odd question, you might think.
What follows is a supportive precedent (of which few exist, supportive or not) addressing the second biggest question websites like GraffitiJunction ask themselves: "Can GraffitiJunction claim copyright for artistic merit of (inherent in) its published images?"
Bridgeman Art Library v. Corel Corp. was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright because the copies lack originality. Even if accurate, reproductions require a great deal of skill, experience and effort, the key element for "copyrightability" under U.S. law is that copyrighted material must show sufficient originality.
Copyright – Artist’s have rights
Should an artist object to finding his or her work here, first understand this is a non-profit web site that seeks to document and preserve a gallery of transient and mostly non-commissioned street art. For that primary reason, and that alone, such art is reproduced on Graffiti Junction.
Copyright Notes
Copyright is an exclusive right to:
- Reproduce a work in material form
- Publish a work (not exhibit – except as electronic publication)
We hope artists will be delighted to see their stuff here, and treat Graffiti Junction as their web site and showcase. Sending your material for publication can only make this a much better place – a community rather than mere photo album. Write to gjman at graffitijunction dot com – translate that into a real email address – we’re avoiding the email spambots!
Copyright notes:
- Copyright does not protect ideas, information, styles or techniques
- Copyright protects artistic works provided they aren’t themselves copies
- Creators of artworks have moral rights even if they don’t own copyright
- Categorised as artistic works are drawings, paintings, sculptures, photographs and craft works
Copyright notice – ©
There is no register copyright in Australia and original artistic work is automatically protected when created. Not essential but desirable is adding the symbol © plus copyright owner’s name and year of creation.
Is displaying a photo of graffiti on this web site a breach of artist’s copyright?
In short, yes, if ..
GraffitiJunction.com ASSUMES a graffiti artist has rights, whether or not the art was legally commissioned by public authority on public property – or even illegal vandalism (with artistic merit).
I have chosen to publish first and deal with copyright second. This does NOT mean to ignore copyright, only that an inordinate amount of time (mostly fruitless) would be spent determining the specific status of each artwork when research already indicates rights are not being infringed in most cases, especially with work of dubious ‘legality.’ Detailed reading of Australian copyright law supports this.
We freely acknowledge even the ‘illegal’ artist has creative ownership and moral rights in his work, despite difficulty in claiming them – assuming, need I add, the activity is creative, is ‘art.’ We aren’t really talking here about serial defacers or territorial taggers.
Generally the lore of artistic rights and copyright says "yes, if an artist wishes they can pursue an infringer and claim their winnings." Of course, if GraffitiJunction is the claimed "infringer" even winning a claim will still find you considerably out of pocket.
There is no question whether GraffitiJunction.com profits from anonymous street art.
- GraffitiJunction.com DOES NOT SELL images of recorded graffiti. We do give them away, and you can download them, though downloads are marked as for personal use only.
- Graffiti Junction DOES NOT SELL advertising space. Period.
Monetisation of this web site, should it occur in the future, will be by agreement with individual artists and specific to their work only. Ideas for you to consider are the marvellous CafePress
Artists’ Rights
We aren’t lawyers. You need expert advice to evaluate the worth of a claim, cost of trying, and likelihood of success. The extract below is about conventional and commercial art, and might apply only indirectly to legal graffiti, if at all to illegal work.
These notes from an article by the Australian Copyright Council Australian Copyright Council can help you understand your rights:
My work has appeared on a web site without my permission. Does this infringe copyright?
Generally, yes. As the owner of copyright you are the only person who has the right to communicate your work to the public using any form of technology, including the Internet. If no exceptions apply to allow the use (eg criticism and review), you may want to contact the person responsible for the web site and ask them to remove your work or pay a fee for the use. Your moral rights (eg attribution) may also be relevant.
What are your rights as a copyright owner?
If you own copyright in an artistic work, generally only you and people who have your permission are allowed to:
• reproduce the work (for example by photographing, photocopying, copying by hand, filming, scanning into digital form or printing from a digital file);
• publish the work (for example; by making copies available for sale); and
• communicate the work to the public (for example by putting it on the Internet or an intranet site, emailing or faxing it, or broadcasting it).No right to prevent exhibition
The owner of copyright in an artwork does not have a right to prevent it being shown to the public, for example by being exhibited in a gallery or hung on a wall. However, the copyright owner does have the right to prevent the work being put on the Internet (even if it was uploaded in a way that could only be looked at and not printed off) because this would be both a reproduction and a “communication” of the work.
Moral rights
When an artwork is displayed (or used in a number of other ways), the creator has a “moral right” to be attributed. Creators, including artists, have moral rights in their work, even if they do not own copyright in it. These rights allow an artist to demand that:
• they are attributed as the creator of their artwork;
• their work is not falsely attributed to someone else; and
• their work is not used in a way that is prejudicial to their honour or reputation.
Excerpts from www.copyright.org.au’s Artworks (and Copyright) – [GO33] ** We are not allowed to link you to the document – you will find it on the alphabetical list at the above link.