People want to know whether or not you can copyright street art, and the answer is a resounding: “sure, why not?”. The topic seems to come up a great deal lately because companies seem to be making a habit of using street art to burnish their own brands and in an attempt to connect with a certain demographic. Not here to judge the merits of that, but I would like to take a few minutes to discuss the legal aspects of the situation.
I use the term “street art” as a sort of term of convenience to refer to the canon of work that you might find on a city street. It covers everything from stickers, to wheatpasted posters to murals. Some of it is done with consent of the owner, and some of it is not. Some of it is truly inspired and some of it is insipid.
The goal here is to help the people who make street art, along with the companies that love it, understand how and when their work can be protected by copyright law.
Why would you want to copyright street art in the first place?
Why would you want to copyright street art? Because it is valuable and copyright law gives great protection for artwork. Asserting a copyright in your creative work – no matter the medium – protects the integrity of the work as it gives the artist the power to control any uses of the artwork. That’s powerful. People see something in it that appeals to them and marketers for companies realize the value and want to associate their brand with street art. That means that it is not unusual for street artists to get ripped off, sometimes intentionally, and sometimes not intentionally. I won’t hazard to guess motives, but it is something that happens with surprising frequency.
There have recently been a number of copyright cases involving street art. One where American Eagle Outfitters allegedly used the work of Ahol Sniffs Glue. One where Terry Gilliam apparently used a piece by Argentinian artists in a film. One where Fiat seems to have used a Tats Cru mural to advertise the 500. It’s all across the board (and I won’t even really get into the issue of the bootlegging of copyrighted street art by clothing retailers – it’s a huge and ongoing issue).
What I think happens many times is that a photographer takes a series of shots on the street, with posters or murals providing at least part of the backdrop. The images go up on social media or into marketing materials, and it’s possible that nobody realized that the art they are incorporating was made by somebody who has rights under copyright law.
A more cynical explanation might be that certain companies bank on street artists not defending their work, or not having it together enough to have registered the copyright in their work. Some companies think that the artist just won’t notice or if they do, they can be appeased with a small settlement.
Either way, the motives vary. Some companies are opportunistic about it, and others are just clueless.
What’s the First Step To Take To Copyright Street Art?
Even though you get a copyright in a creative work as soon as it’s created, the first step would be to register your work with the United States Copyright Office. That’s also step two, because it’s important. If your work is something like a mural or anything else that is too large to send a copy to the Copyright Office (this is called a “deposit”), you might have to submit pictures that document the work. Registration is not required, but it is crucial to being able to enforce your rights in court. So if you have a piece of street art that you care about, go ahead and register.
Does It Matter If The Art Was Done Illegally?
Here, by “done illegally” we’re talking about whether the artwork was done with the consent of the owner of the place where it was put up. It might matter, but in general, it shouldn’t. The issue of whether a copy of a given artwork was done legally or illegally is sort of a side issue. Copyright law primarily concerns itself with whether a creative work was made by a given author in such a way that it is protected.
Plus, it’s the artwork itself that we are protecting, not the specific embodiment. Look at it like this: for every piece of street art, whether it’s a poster or mural or something else, there is often a precursor work. It might be a sketch, or a design done in Illustrator, or a test painting. Anything really. The creative work that goes into it would be the thing to consider registering a copyright on.
From there, works based on the creative work might find a new home outdoors, but the copyright still remains on the creative work, and not on any specific embodiment.
What Do I Get When I Copyright Street Art?
You get all the benefits of copyright registration, but more importantly, you get a means of asserting your rights and controlling how your artwork is used by other people. If you have no problem with other companies making a profit without cutting you in, maybe it’s not worth it for you to copyright your work. But if it is, then this is the cheap and easy way to do it.
To understand a little more about what you get when you copyright street art, take a look at an article I wrote about the legal issues in copying and credit in design.
Thanks for reading – if you have any questions or want to know more about this or any other legal topic, email me at jon@counselforcreators.com or use the contact form. I have a short ebook called The Creators’ Legal Guide that can take you a little more in depth, too. Finally, you can subscribe to my mailing list to stay in the loop. If you have a vexing legal problem and want some clarity, I offer low-cost consultations to creative professionals.
And a word of caution now. I am a lawyer, but I am not your lawyer unless we have agreed to work together. That means that none of the above is meant to be legal advice, it’s just to give you an overview of a legal topic that I think is important. If you have a real legal issue, don’t rely on the Internet. Talk to a lawyer.
