Urban Photography Copyright Question

[st599]

Hi all,

Newbie here, so please be kind.

I have a quick question about a photo I have taken as someone else has asked if I could sell them a print.

The photo is taken of a rather good bit of graffiti-style street art in the Shoreditch area of London (which is known for it's street art). The image was taken from the public highway and features no persons or likenesses. My question is, as the image is mainly of this work, would I be in breach of copyright to sell an image of someone's art?

I don't know if the item is commissioned or if the artist just did it anyway (it was done on a black wall where the owner had painted over previous work). Presumably if it was an act of criminal damage, there is no right to copyright?


Thanks

ST

 

[ernesto]

I don't know if the item is commissioned or if the artist just did it anyway (it was done on a black wall where the owner had painted over previous work). Presumably if it was an act of criminal damage, there is no right to copyright?

I would guess this is the part you need to find out to be sure of the situation

 

[HoppyUK]

Sounds like one of those grey copyright areas.

Copyright obviously exists in the work but given the nature of its display, it is clearly (almost willfully) open to abuse. A bit like copyright exists in architecture, but a photograph of a building printed on a piece of paper hardly represents a 'copy' of the real bricks and mortar original but this graffiti thing is different.

My guess is that a lot would hinge on use of your image. If it's just a couple of prints sold for a small sum, or published editorially, that's one thing. But having a thousand postcards and posters made for sale, would I think get you into trouble if the majority of the image was just the graffiti artwork.

Copyright exists primarily to protect the financial interests of the holder, so a lot of it hinges on how much money is involved.

 

[Phil V]

It depends on how much the photograph depends on the graffiti.

It's what's known technically as a derivative work and is a legal minefield.

Now you know the correct term you can have a read up on the web.

 

[st599]

It depends on how much the photograph depends on the graffiti.

It's what's known technically as a derivative work and is a legal minefield.

Now you know the correct term you can have a read up on the web.

Presumably only a derivative work if copyright exists?

 

[Phil V]

Presumably only a derivative work if copyright exists?

In what case would copyright not exist?

 

[Musicman]

Copyright obviously exists in the work but given the nature of its display, it is clearly (almost willfully) open to abuse. A bit like copyright exists in architecture, but a photograph of a building printed on a piece of paper hardly represents a 'copy' of the real bricks and mortar original but this graffiti thing is different.

Photographs of buildings are specifically excluded from copyright infringement by Section 62 of the Copyright, Designs and Patents Act 1988.

It's also the most relevant section to the OP's question.

62 Representation of certain artistic works on public display.

(1) This section applies to —

(a) buildings, and
(b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.​

(2) The copyright in such a work is not infringed by—

(a) making a graphic work representing it,
(b) making a photograph or film of it, or
(c) [F1 making a broadcast of] a visual image of it.​

(3) Nor is the copyright infringed by the issue to the public of copies, or the [F2 communication to the public], of anything whose making was, by virtue of this section, not an infringement of the copyright.

Not a grey area at all, IMHO.

Graffiti would probably classified as a 'graphic work' under s4 of the Act, not a 'work of artistic craftsmanship', which would be things like wrought iron work, embroidery, ceramics, woodworking and jewellery, etc.

The difficulty for the claimant would be in enforcing his/her claim of copyright if the graffito was illegally placed on a building, since it might open them up to criminal prosecution.

 

[HoppyUK]

Interesting comments Rob, thanks.

 

[st599]

In what case would copyright not exist?

Presumably if the act of creating the graffiti was not commissioned by the property owner it would be criminal damage. I can't see an act of criminal damage being subject to copyright.

 

[Phil V]

Presumably if the act of creating the graffiti was not commissioned by the property owner it would be criminal damage. I can't see an act of criminal damage being subject to copyright.

I can see why you would believe that, but I don't think when the copyright act was written any such distinction was made. But I'm not an expert and I could be wrong.

 

[HoppyUK]

I can see why you would believe that, but I don't think when the copyright act was written any such distinction was made. But I'm not an expert and I could be wrong.

Yes, tricky. Just had a quick google and copyright of graffiti seems rife with issues.

There's a world of difference between an act of vandalism and what is now regarded as a serious artform, including commissioned works.

It seems quite likely that the graffiti might have been done with the owner's permission, or if it was done without permission and now the property owner likes it, it could be argued that permsiion was given retrospectively.

The ownership of the physical work is interesting too, seems that would belong to the property owner, but the artistic/intellectual rights would be with the artist.

Minefield basically. I still say that whatever the legal position, in real terms the practical situation would depend on use, ie okay to sell a couple of prints for a few quid (who cares?); not okay to run off a thousand posters with some cash involved and worth chasing.

Googling case law would probably be the best guide. This must have happened before.

 

[Llamaman]

Presumably if the act of creating the graffiti was not commissioned by the property owner it would be criminal damage. I can't see an act of criminal damage being subject to copyright.

A dangerous assumption.
For example, a libellous newspaper article is still covered by copyright (although you would be foolish to copy it as you'd be open to two civil cases!).
Or (to use a criminal rather than civil matter), if I'm driving a stolen car and am hit by a reckless driver, I can still pursue a civil case against him even though I was comitting a criminal act to put myself in the position.

In the case of the grafitti, I would definitely get professional legal advice rather than assume it'd be OK. My hunch is the complete opposite of your presumption so I'd be wary.

 

[HoppyUK]

A dangerous assumption.
For example, a libellous newspaper article is still covered by copyright (although you would be foolish to copy it as you'd be open to two civil cases!).
Or (to use a criminal rather than civil matter), if I'm driving a stolen car and am hit by a reckless driver, I can still pursue a civil case against him even though I was comitting a criminal act to put myself in the position.

In the case of the grafitti, I would definitely get professional legal advice rather than assume it'd be OK. My hunch is the complete opposite of your presumption so I'd be wary.

That's mine too. It seems obvious that while some graffiti is not covered by copyright, some other works most definitely are.

Here's another fun twist - large graffitis are often the work of multiple artists

 

[Llamaman]

Here's another fun twist - large graffitis are often the work of multiple artists

My inner lawyer (I'm actually a tax adviser but I do have some legal training because of my job) is licking his lips over that one... mmmm chargeable hours.... Here's my timesheet :rules:

 

[HoppyUK]

My inner lawyer (I'm actually a tax adviser but I do have some legal training because of my job) is licking his lips over that one... mmmm chargeable hours.... Here's my timesheet :rules:

A cynic might say that the law is written, by lawyers, for the benefit of the legal fraternity. But I think that's a scurrilous suggestion

 

[Llamaman]

No, no, no - you've got it all wrong.

The law is written by Civil Servants (public school educated, dear boy) and scrutinised by MPs (public school educated, what what)... for the benefit of the legal fraternity (public school educated, tally ho!).

Don't you love a meritocracy?

 

[HoppyUK]

Spiffing

Is public school where they learn to write in that impenetrable jargon-invested legalese, so you have to pay a solicitor, the aforementioned and hereinafter exhibit A to be known henceforth as the guilty legal tart, just to find out what it actually means?

 

[bolide]

There's a world of difference between an act of vandalism and what is now regarded as a serious artform, including commissioned works

Possibly. But not in the copyright sense. If a photographer took an "illegal" photograph he'd still own the copyright to it. Whether the act of painting graffiti is illegal or not the copyright rests with the artist

If the photograph is primarily of the graffiti and you sell images of it I'd expect the artist to come after you - just as you'd go after someone who sold photos of a piece of art you'd created

Nick Froome