Social media has given street art fame and recognition that is unprecedented. Artists create their works – murals or graffiti or paste-ups – to convey a personal or political message to a broad public, or simply as pure self-expression. But when social media influencers discover and publicize those works, it often is the influencers, rather than the creators, who profit. By associating themselves with street art, influencers and other third-party players build not only their fame and cachet, but also their bank accounts.
Street art and social media have transformed blank walls into cottage industries. In the process, street art has become a promotional tool – one that can be exploited by various players with differing interests. Social media influencers may photograph themselves in front of the art, gaining followers and building their brand; businesses nearby benefit from increased foot traffic as tourists seek out the art; and in cities where films and commercials are shot, location scouts may consider using street art as a backdrop. All of this typically takes place without authorization from the artist, and without compensating the artist.
Street art differs from traditional art in several ways. Most notably, street artists don’t own the walls they use as canvases; in many places, street art may even be illegal. Indeed, the general public may believe that street art – graffiti, or a mural on an abandoned building, or a stencil on a sidewalk – is in the public domain, and that it may be freely used and reproduced without the artist’s permission.
But is that the case? Is street art less entitled to copyright protection than is traditional art?
Street art, like traditional art forms, is automatically protected by copyright law. Even when street art is created with the purpose of being readily reproduced, intellectual property law does not treat it differently from other art forms.
Let’s take the example of a sculpture commissioned and installed in front of an office building or in a public space. Regardless of who owns the sculpture, the rights to license or reproduce it usually remain with the artist.
Notably, however, one exemption to consider is that afforded to architectural works. While architectural works are also protected, the Copyright Act treats them differently, exempting pictorial representations of such works from copyright infringement. As a result, publicly visible buildings can be freely photographed. These photographs can then be monetized – as long as there is not an implication of an association or endorsement.
This raises an interesting question: should street art be considered part of buildings (if affixed thereto), and therefore exempted from copyright infringement law, or should it be regarded as pictorial, graphic or sculptural works to which the exemption does not apply? Based on the current state of the law, street art falls into the latter category. Therefore, social media influencers and advertising agencies (and others seeking to monetize an artist’s street art) should not use these publicly available works for commercial purposes without the permission from artists.
And as this trend continues to soar in popularity, so too will the disputes over the relevant rights.
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