Photographing graffiti (copyright)

<p>A graffiti artist is seeking $45,000 in damages from the CBC for the unauthorized commercial use of his graffiti "artwork" in Montreal. <br>

<a href="http://news.nationalpost.com/2014/07/28/artist-sues-after-tv-show-films-montreal-building-that-he-had-tagged-with-graffiti/">http://news.nationalpost.com/2014/07/28/artist-sues-after-tv-show-films-montreal-building-that-he-had-tagged-with-graffiti/</a></p>

<p>Both sides are presenting convincing arguments and it's going to be interesting to observe how a judge will rule. </p>

<p>You can photograph graffiti as much as you want. There may be a question of the copyright status of the graffiti itself, I see no relevance to photographic copyright issues.</p>

<p>I have no information on the facts of this, but I have had unreleased photographs of graffiti accepted by large stock agencies with the implication that they have been quite happy for clients to use those images for commercial purposes. Stock agencies are mostly rather conservative on these issues since they appreciate that although its the end user that can be sued, the commercial issue doesn't end there.</p>

<p>This is little strange and I'm just looking at the obvious. How can anyone figure out who painted the image on the wall....without the copyright sign (he he) or his name next to it ?</p>

<p>Les</p>

<p>The issue appears to be the production's use of the graffiti as a marque or logo for the program.</p>

In Canada (unlike the U.S.), a creator's moral rights are fully protected. Here, the artist is claiming that the work was used

with changes that damaged the artistic integrity of the original and suggested an association with the TV program that the

artist found objectionable.

 

Even if the artist can prove infringement, he may not be able to recover money damages or force Radio-Canada to stop

using his altered work. Under the "clean hands" doctrine, courts will not make an award where the plaintiff comes to

court with "dirty hands". In Montréal it is illegal to tag buildings without the owner's permission. Since the work was

created illegally, the Court could refuse to rule in the plaintiff's favour.

 

Before I retired, I worked in the communications directorate of a department of the Gouvernement du Québec. One year,

the government negotiated a licence from a Québec artist to use a painting for the cover of an appointment/meeting book

given to all public service employees. After the book was published, the artist claimed infringement of his moral rights

because the integrity of the artwork had been damaged by cropping. To get the full-bleed image to perfectly fit the cover,

the graphic designer omitted a very narrow strip along one edge that he thought was insignificant. The artist disagreed

and received a generous settlement for the damage to his moral rights under Canadian copyright law.

<p>I don't think any US court would seriously consider ruling in favor of supporting either rights or profit from criminal activity. Graffitti is criminal activity. One sides "convincing arguments" are likely flawed to a significant degree. But who knows what will happen in Canadian courts.</p>

<blockquote>

<p>I don't think any US court would seriously consider ruling in favor of supporting either rights or profit from criminal activity. Graffitti is criminal activity.</p>

</blockquote>

<p> The Chrysler corporation was not so confident...</p>

<p>http://nypost.com/2011/11/30/fiat-settles-claim-with-bronx-graffiti-artists-over-j-lo-ad/</p>

<p>Even if the lawsuit fails (and it very likely will), the plaintiff gains a lot of "free" media attention and publicity. Could that be what he's really after? I hope it's worth the attorney's fees...</p>

<blockquote>

<p>Graffitti is criminal activity. </p>

</blockquote>

<p> <br>

This statement is wrong.<br>

<br />Plenty of graffiti is legal. Most tagging is illegal, but that's very different.</p>

<p>I stand corrected, Jeff. There does appear to be places where grafitti is legal (even in my city where grafitti is generally illegal) .</p>

<p>John H... please help me understand how a settlement equates to a court ruling. :)</p>

<p>I don't think John was equating a settlement and a court ruling. His statement on "confidence" indicates that Chrysler thought it better to settle than to risk a negative court ruling.</p>

<blockquote>

<p>"please help me understand how a settlement equates to a court ruling."</p>

</blockquote>

<p>It doesn't. As Jeff explains.<br /><br />Cases in the U.S. on the topic are scarce. I saw one that was ultimately dismissed on other grounds but there was discussion suggesting a legal right to use the property would being relevant to right to a copyright of what was put on it.</p>

<p>I would be troubled that a work, even if made by illegal methods, would be completely unenforceable in terms of copyright. Creating a public domain like free use for anybody. Also, It could open the door to new ways a copyright could be defeated merely due to the negative method in which it was made. I would agree that the property owner would be free to use or dispose of the original work on their real estate since the medium (like a poster) itself has always been transferable while the imagery seen on it just goes for the ride. Plus a real property owner shouldn't have to preserve anything like that of course.</p>

<p>Got it. Thanks John and Jeff.</p>

I don''t believe that criminals should receive compensation for their crimes.

<blockquote>

<p>I don''t believe that criminals should receive compensation for their crimes.</p>

</blockquote>

<p>The people who ran Washington Mutual are far more of a problem in this respect than any graffiti artist. When the government actually forces the compensation of the crooks that ran banks into the ground and people into foreclosures and bankruptcy, then the trivial compensation to graffiti artists can be considered.</p>

<blockquote>

<p>"I don''t believe that criminals should receive compensation for their crimes."</p>

</blockquote>

<p>The crime is vandalism or similar, not creation of the content. The proper way to prevent financial gain ARISING from the vandalism would be as part of a sentence after conviction or (in the U.S.) changing the Copyright Act. The next question is whether there should be a de facto public domain like use for anyone to use such content as a result vs. the perpetrator just not being able to demand financial compensation for its use.</p>

<p>The content *IS* the crime. An exception would be when the graffiti were created with permission from either the property owner or the municipality that oversees the object (bridge, wall, building, etc.) that hosts the creation. Otherwise, the creation is itself and act of vandalism. No reasonable legal code would protect an act of vandalism.</p>

<p>Fortunately for some philosophies of justice, the non-judicial death penalty applies to <a href="http://www.nydailynews.com/news/national/florida-teen-death-caused-taser-article-1.1714730">graffitists in Florida</a>. Saves a lot of time and trouble for property owners and taxpayers. It's also fortunate that the attempted non-judicial death penalty applies to almost everything in Florida, including the attempt to video-record law enforcement in their pursuit of applying the non-judicial death penalty to almost everything.</p>

<blockquote>

<p>The content *IS* the crime.</p>

</blockquote>

<p>This reveals a grave misunderstanding of the 1st Amendment. Expressive content, itself, is not subject to suppression.</p>

 

<blockquote>

<p>An exception would be when the graffiti were created with permission from either the property owner or the municipality that oversees the object (bridge, wall, building, etc.) that hosts the creation.<br /><br /></p>

</blockquote>

<p>'Creation' of content is not content. Ownership of physical material is irrelevant to content. Applying paint to physical real property is content neutral. If content arises, rather than random splotches spilled on a wall, it is incidental and separate from the physical application of paint. There are no vandalism laws that address content such as allowing expression of some subjects and not others. These laws are content neutral. Because it would run afoul of the 1st Amendment otherwise. Attaching paint to something and creating content are two completely separate concepts. Even when occurring at the same time.</p>

 

<blockquote>

<p>No reasonable legal code would protect an act of vandalism.<br /><br /></p>

</blockquote>

<p>No one argues otherwise. No one claims victim property owners cannot destroy the physical material that makes up expressive content or what it is on. No vandalism is protected. The only thing protected, according to current law, is the use of the content by others except the property owner using the physical material left on the property if they so choose. If one desires that vandals not benefit from copyright to the content, then the avenue is to change the copyright law. That does not violate the 1st Amendment. It is not suppression any more than copyright expatriation periods, fair use ect... The other avenue is to disallow copyright claims as part of a sentence upon conviction for vandalism since that is a permissible means to deprive people of rights.<br /><br />Bottom line, vandalism is not content and there are no laws that base vandalism on what the content is. They merely address the content neutral physical act and leave the content as incidental without consequence per se. </p>

Copyright protects against the unauthorised reproduction and use of something that took an intellectual effort to create. It doesn't matter in what circumstances the original work was created. If it is the result of an original intellectual effort, it is protected.<br>Protected, against unauthorized reproduction and use of the copy. Not against anything else. If you want you can destroy an original work. If you own it, you're absolutely free to do so. If you do not, it's 'vandalism'. The owner of the wall is free to do whatever he wants to it. He is not allowed to reproduce the work on it and publish the reproduction without consent.

<p>Sections 106a and 113 of the US copyright law talk to authors' rights and pictorial, graphic and sculptural works incorporated into buildings. But not directly to works incorporated into buildings without the building's owner's permission? It might be interesting to find out if any "vandals" have registered their information with the Register of Copyrights to provide for notification of changes to buildings, etc. </p>

All the owner of the wall has to do is try to notify the grafiti painter that his work will be destroyed. If that attempt remains unsuccesful, the grafiti goes. If it is successful, the grafiti painter will be paying for the removal of the work (plus whatever fine is due for vandalising the wall).