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[GordonPatersonArts]

I'm about to start a mural on the outside of a music store. I really want to paint some images of some famous musicians...either dead or alive. These images will enhance the mural tremendously but the owner of the store thinks this will fall under some copyright laws by using these images...I disagree. Please, does anyone have a solid legal answer on whether which one of us is correct. I really want to paint these images.

Thanks,
Gordon.

[Kaitlin]

Copyright is indeed going to be an issue if you are copying someone else's photograph or other portrait of modern musicians.  (If you're portraying works done long enough ago to be in the public domain...like images of Brahms or Beethoven done by their contemporaries, that would be another matter.) 

If you are doing your own creative rendition of the musicians without working from anyone else's artwork or photography, then copyright shouldn't be an issue BUT right of publicity by the famous musicians could very well apply. 

The store owner is right to be concerned. 

(Incidentally, bear in mind that anonymous postings on a board like this should not be taken as a "solid legal answer".  Rather take what's offered and, having the concepts and terminology offered, use those to check out the information elsewhere to see what other sources agree.  Also, many, many laws vary by state, including laws on the right of publicity.)   

[Smokin]

There is never anything that is black and white with copyrights.

If one copies a photograph, it is copyright infringement, that being said, if an artist uses a photo as a reference for an artwork that depicts and communicates something else entirely from a reference photo used, then courts are more likely to find use of images as fair use.

There are many lawyers who will say its not allowed and its infringement, but there are also many lawyers with a fair amount of case law that backs up an artist's right to express themselves. Courts give alot of leeway to artists and there are ways of expressing yourself in art without needing a license or permission from public figures. The first amendment is of critical importance to consider when asking copyright questions like these which can often times get overlooked.

I live right next to this thing:
http://www.publicartinla.com/LA_murals/Hollywood/moviestars.html

[GordonPatersonArts]

Wow, thanks guys!! I really appreciate the feedback!! I guess it still leaves me in a bit of a grey area however...damn, not what I was hoping for. I will take this information to the owners and try and come up with a solution...I have some creative ideas swirling already. I'll be posting my progress on the mural at GordonPatersonArts...if you are interested as to what I came up with.

Many Thanks!!
Gordon 

 

[artchain]

As Kaitlin mentioned, you may have issues with rights of publicity.  This is true whether the people portrayed are living or dead (the estate may control the rights).

To be reasonably safe, you'd want to consult with an IP attorney.

Or, you could save yourself (and the building owner) potential expense and trouble by creating generic images, rather than images of specific musicians.



 

[Kaitlin]

Thanks, Artchain, for fleshing out more of the publicity rights aspect.

Smokin is right about the gray areas in the law; "it depends" is a well known mantra to lawyers! 
But a "Free Speech" analysis may not carry a lot of weight in the scenario proposed by the OP.

Courts give alot of leeway to artists and there are ways of expressing yourself in art without needing a license or permission from public figures. The first amendment is of critical importance to consider when asking copyright questions like these which can often times get overlooked.

The OP is proposing a commercial use for the intended artwork:  the mural is to go on a music storefront. 
That commercial aspect could significantly impair any leeway likely to be given in a "fair use" analysis.   
First Amendment rights to free speech get watered down a lot when the "speech" at issue is "commercial speech".

[GordonPatersonArts]

Thanks again guys...I love your input on this. All my artwork are from photographs of some sort and I change things up and paint in my own style. I never make it look like the original photo so I've never worried about copyright infringement before. I think it's because this mural will be very public and directly related to a business, the concerns have come up.

I am heading down the path of generic images and silhouettes but they just won't have the same impact as a likeness image will have. I don't paint like Jackson Pollock and I know the public here prefers murals that look like something and to have a few images that they can relate to always comes with a lot of positive feedback...that's what I'm aiming for.

This mural is very important as it will be a flagship mural for me in my community and city and I want ot put my best work on display. Sooo, you can understand my dilema.

Well, I'll have to come up with something. Thanks again for your input.

ps: I contacted a couple of attornies but of course they wanted $$ in exchange for their advise...argh!

[Kaitlin]

You're very welcome!

ps: I contacted a couple of attornies but of course they wanted $$ in exchange for their advise...argh!

"You get what you pay for." 
We've helped you think about some factors to consider in situations like the one you describe, from a legal and an experienced lay perspective, but actual legal advice tailored to the particulars of your situation would take more analysis time and research (probably involving research fees to Lexis or Westlaw) than any of us have put out for our offerings here.  Consider also the costs of overhead, legal research online subscriptions or books, and malpractice insurance, which is pretty hefty in the IP area, and try not to be too hard on our colleagues! 

Incidentally, you might check out some of the "lawyers for the arts" groups that can be found around the country, particularly siince your situation can be presented as promoting you, the artist, through your making the mural.  (E.g. www.calawyersforthearts.org)

[GordonPatersonArts]

Point well taken Kaitlin. Your advise has been most helpful and I appreciate it all. You've changed my line of thinking and direction with this...I will side with the store owners and "err on the side of caution".....well, this time anyways! No disrepect to your colleagues either, I was just looking for a quick "free" answer. I will do way more research on copyrights after the mural is complete.

Thanks for the link. It appears that it could be quite helpful.

Cheers,
Gordon.

[Smokin]

But a "Free Speech" analysis may not carry a lot of weight in the scenario proposed by the OP.

A free speech analysis could, should, and does carry alot of weight despite a possible commercial purpose for said speech. An artist's voice is their work of art, and that voice should not and does not preclude them from making a living from it or that message to attract business or not. While courts need to balance the the commercial incentives that copyrights grants with a first amendment right of an artist, its still not in any way shape or form a deal breaker nor is it fair to say that it significantly impairs a first amendment argument if an artist or patron have a commercial purpose for the work.

Artists dont need to be shy about making money off their craft just like no talk show hosts should be shy about making money off the latest gossip or exploitation of washed up actors and actresses. Our country is filled with people making money off thier first amendment rights.

A mural is one piece of art, one work of art,  and in many states they carve out exceptions for publicity rights for artists with these types of works specifically to preserve the artists right to free speech.

It really doesn't matter if the painting is a mural or small 5"x7" post card. If you are not copying a photo but rather using it as a reference, then its not copyright infringement. In some states they specifically carve out exceptions on publicity rights for artists who paint limited works of art (not multiple posters or merchandise).

[chugan]

Thanks again guys...I love your input on this. All my artwork are from photographs of some sort and I change things up and paint in my own style.

Google Shepard Fairey.

http://nashbillies.wordpress.com/

[Smokin]

googling shepard fairey is moot, it does nothing to illustrate a courts opinion or ruling on such matters since the case was settled outside of court. What happened outside of court and what the attorneys settled on is another matter all together. If you Google Shepard Fairey, google Fair Use Project's involvement with the case to understand what artists rights are.

 Google:
Tiger Woods vs. painter Rick Rush a.k.a. ETW Corp. v. Jireh Publishing, Inc.
Nussenzweig v. diCorcia
Street artists VS NY

Also keep in mind warhaul's work (Monroe, Elvis, ect.) is frequently pointed to in copyright and first amendment cases by justices as examples of protected expressions despite the act of copying.

[Kaitlin]

But a "Free Speech" analysis may not carry a lot of weight in the scenario proposed by the OP.

A free speech analysis could, should, and does carry alot of weight despite a possible commercial purpose for said speech. An artist's voice is their work of art, and that voice should not and does not preclude them from making a living from it or that message to attract business or not.

I don't think we're on the same page here, Smokin.  Just to be clear, "commercial speech" in the context of the First Amendment has nothing to do with the artist earning a living.  The fact that a writer sells a book or an artist sells a painting or sculpture does not render the work "commercial speech".  (And when I say it may not carry "a lot" of weight, I'm not saying it won't carry any at all, just that there's likely a lesser degree of protection.)

"Commercial speech" refers rather to speech that constitutes advertisements for businesses.  My concern was that in the context of the artist's employer using the artwork to attract business for a music store, the OP's artwork could be viewed as an advertisement for the music store, which might impact any First Amendment argument.  And it may be that were I to research this I'd find that courts have said that the nature of the speech is not relevant to copyright issues.  But without knowing more, I'd be circumspect about letting someone think First Amendment free speech protections have their full force in art that can be considered to be advertising. 

------------
Hmm.  If this article is correct, it would seem that advertisements have been getting a stronger foothold lately, however. 

[Smokin]

To assume that a mural could be construed as "commercial speech" is a stretch imo. When I hear a muralist ask if they can paint some musicians on the side of a wall, the answer that comes to my mind is ABSOLUTELY. There are some exceptions like copying someone's elses work like a photograph or implying hat someone (an artist) is endorsing something is a nono, but outside those few exceptions, OF COURSE AN ARTIST CAN PAINT MUSICIANS, this is a no brainier.

The fact that the work is going on a wall is moot, it could be a painting, a sculpture, an abstract expression, but what is clearly recognized is that the act of creating artwork is considered a first amendment right that trumps copyright laws, privacy laws, and publicity laws (with exceptions of course). An artist's mural that is being used on a side of a business to attract customers and express an opinion on music and musicians is no different than a buisness owner promoting their business and products. Is an owner standing outside their music business telling people who walk by that he has wonderful music from "this artist", "that artist" or loves "this performer" or "that performer" considered an expression of "commercial speech", or violating publicity rights? The obvious answer is hell no, so why is there even a question about an artist who expresses their opinion through their choice of medium/speech?

Every case Ive seen dealing with art and artists consider the work a first amendment right and considered an expression (speech), weather the viewer understand a meaning or not. "Commercial art" typically deals with artwork that becomes "numerous", like unlimited prints or even too many prints and posters, or an ad in some kind of publication. Creating merchandise with artwork like mugs or t-shirts. For example an artist created a drawing of the three stooges and created tons of merchandise with it (t-shirts, mugs, posters), the courts found that everything he did was a violation of publicity rights except for that first original print which was protected by the first amendment and which could be sold profited from or even promoted.

[artchain]

To assume that a mural could be construed as "commercial speech" is a stretch imo.

This is actually a sensitive topic in the art world.  Many (most?) cities regulate murals under their commercial sign ordinances.  (A few cities, like Portland, have a separate "mural code."  Los Angeles is currently considering adopting a similar code, after complaints about it's treatment of murals as signs.)

I'm not aware of any court cases on this topic.