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[Ed Mez]

I have taken many photos of graffiti around NYC and now would like to use them to sell as postcards.  

The photos show some entire graffiti pieces, and some show only parts that I found to be interesting.  In every case the graffiti was part of a large wall of many different paintings.  The walls were always on government property (housing projects, urban schools) or the sides of buildings.  I did not photograph any murals that were clearly commissioned as decoration for a business.

Do I own the copyright to the photos I took, or do I face the possibility tha

[Ed Mez]

(sorry, got cut off) ...the possibility that one of the "artists" will sue me for infringement?  

In some cases the graffiti has been there for a while, so the act of painting on those walls may be "condoned" by the owner and not entirely illegal.

Thanks for anyone's advice.

[Isaac]

Yes it is possible, and I think the artist would have a case too.  

I think the fact that the artist did not have permission to paint the wall is not particularly helpful to you.

[M. Arthur Auslander]

Dear Mr. Mez.

Without, resesarch or taking professional responsibility, my belief is that if there is no copyright notice on the graffiti that you are safe until you have been given notice of a registered copyright. In view of the public nature of the graffiti the pictures may have a news value that overrides any copyright, if there is no notice.

If you sold photographs of Times Square with all the adds and pictures, it would seem wierd to me for you to be sued for copyright infringement of all the adds etc.

[Isaac]

Mr. Auslander,

Could you expand a little on why you feel registration and notice are important in this context.  

My understanding is that notice and registration are formalities which while having legal signficance are irrelevant to the issue of whether or not an activity is infringing.

[nobody]

Who owns the photos? (Assuming that the photos are more than just verbatim copies of the artwork) The photographer owns the photos, whether publishing them infringes on the graffiti artist or not. (The photographer can own the photos AND be sued for infringing on the copyright in the artwork.)

The obvious difference in whether or not the art is registered is of course if it were, presumption of authorship falls to the claimant and statutory damages for infringement could be awarded to the owner.

Would someone previously unknown, who possibly commited a felony in effacing government property, file an infringement suit where the art was not registered and only actual damages could be awarded? Interesting question. Of course if the artwork is registered, it would be registered in another form, ie a print from the original canvas or computer file, not a mural on the wall of a government building.

Is this an April fool's joke? ;-) Just kidding.

[Isaac]

I think the question of who owns the photos is interesting.

Assuming that they are more than just copies of the artwork, then maybe they are derivative works.  If so the photographer would own the copyright in the portion of the derivative work he created provided that the making of the derivative work were authorized.  Arguably, in this case there was no authorization.

Yes your point about statutory damages and the presumption of ownership is valid.   Also the notice might make a difference if the copyright owner wanted to prove that there was wilfull infringement.  But all those things go to proof and not to whether there is infringement.

Maybe I'm making more of the response than was intended.  Maybe the point is that lack of a notice or registration suggests that the grafitti artist is not serious about protecting his building defacing artwork.

Do you often see copyright notices on more conventional artwork?

[M. Arthur Auslander]

Dear Mr. Clark,

Without research, my understanding of the law is that with the copyright notice on a work you are alerted to the rights of the claimant. With a registration, the claimant can take legal action for infringement.

[Isaac]

I diagree a little.  I think your statements about the law are accurate but they are not the full story.

My understanding is that liability for copyright infringement  is akin to strict liability.   A defense that you did not know that the material was protected by copyright may result in a limitation of damages because the copying is not willful, but is not relevant to whether there has been infringement.

In fact even inadvertant copying (for example unconciously copying of elements from a song that you don't even remember hearing) is infringement.

The plaintiff can register after the infringement occurs.   If the registration is not submitted within a few months of publishing the material there are no statutory damages available, but a suit is still possible.  Some courts will allow suit with just proof of an application for registration filed with the copyright office.  

[M. Arthur Auslander]

Dear Mr. Clark,

The answers in the Forum are abstract. In real life lawyering the entire picture has to be considered from the vantage point of the client.

[nobody]

"If so the photographer would own the copyright in the portion of the derivative work he created provided that the making of the derivative work were authorized."

Authorized? For example, if I publish my own novel, using "clipart" found on the Web, as illlustration, I can be sued for infringement by the rightful owner of such "clipart" for using the art without permission, but that does not affect my rights in my own work. Of course, in a photograph, the authorship of the photographer is not easily separated from the graffiti artist's authorship.

"I think the question of who owns the photos is interesting."

If the artist who illegally defaced government property is the same artist who created the "artwork" and the original fixation is in the government property, personally I believe their rights should be null and void :-)

Taking a photograph of archectectural structures in public view is permitted, so by the same logic, why not photos of buildings with graffiti on them?

A similar situatiuon to the graffiti scenario seems to be taking a photo in a public park and including a sculptural work (ie statue) in the photo. Any cases dealing with this?

[Isaac]

Authorized? For example, if I publish my own novel, using "clipart" found on the Web, as illlustration, I can be sued for infringement by the rightful owner of such "clipart" for using the art without permission, but that does not affect my rights in my own work. Of course, in a photograph, the authorship of the photographer is not easily separated from the graffiti artist's authorship.

What you suggest may seem logical but here is a statutory provision suggesting otherwise

17 USC 103(a)
The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

I interpret that to mean that you cannot enforce the copyright on a derivative work that you have created unlawfully.

[nobody]

The part of what I wrote that you highlighted, stands correct. The statutes that you quote don't really apply to what I wrote. Assume someone writes such a novel and mistakingly uses the wrong clipart like I said. He/she gets sued. The novelist takes their lumps in court, removes the infringing clipart and substitutes authorized clipart. Provided the novel was registered before the clipart was added, so much the better. Of course the novelist wouldn't own the derivative work that used the unauthorized clipart, but where do the statutes say the the novelist would forfeit rights in the novel itself? Of course it isn't relevant to the graffiti question, I was just making a technical point. You wrote: "If so the photographer would own the copyright in the portion of the derivative work he created provided that the making of the derivative work were authorized." My point was that one's own work, is one's own work regardless of authorization to add additional authorship, provided his own work can stand own its own, but like I said it doesn't really apply to a photograph by a second party, of a protected work.

[James Taylor]

I found your posting fasinating. I too have been looking at using illegal graffiti in a commercial venture. I have taken photos of graffiti and altered the photos electronically creating electronic art from the original photo. I am concerned that someone might take claim to the work as their own. Have you found out anything more on the topic? Please let me know if you have any more info regarding this point.

James

[M. Arthur Auslander]

Dear Mr. Taylor,

Without taking professional responsibilty, you have to remember that the RIGHT to a copyright is not enforceable unless the copyright is REGISTERED, thus if there is no statutory copyright notice on what you have copied you are not on notice of a copyright owner's right or that a copyright is registered. It is likely that no copyright will be registered or claimed.

Start with a picture of the work, then the author of the pidture may have a right even if the work is an infringement.