There is no doubt that street art is a contentious subject with varying degrees of condemnation and praise—a constant debate as to whether it should be banned or legalized. A definition does not exist to differentiate between good and bad art, and it is all the same when debating street art. It comes down to the fact that it is hypocritical to condemn one artist over another only because you enjoy the presence of one over the other on the walls of your city. Not only is there a dispute over whether street art should be allowed, but there is also the debate as to who owns the right to street art? Does the artist own what they created, or does the owner of the building with said creation on it own it?
More times than not, an artist plants their masterpiece on a building that is not their own. Many artists are not commissioned to cover the building with their piece either, so this begs the question: do artists own the right to their art if they planted it on someone else’s property? If the wall is not theirs, can they still claim the piece that they plastered on it?
There are two details that street art must embody to be claimed by its creator. These two traits are that it must be original, and it must be fixed. Street art is granted the same type of copyright law as other art forms in which it is automatically copyrighted. Intellectual property law does not treat street art any differently than other types of art. It starts to get complicated when differentiating between street art and graffiti, however. Many believe graffiti is street art, whereas others believe it is only tagging. Tagging, a type of graffiti, is one realm that many agree is not street art because it does not require original thought, thus preventing it from being copyrightable.
Now, it is important to know that just because you own the copyright of your work does not mean you can prevent someone from ripping it down or painting over it. If you also owned the wall, then you would be in your right to contest either of those, but having the copyright of your art only guarantees your right to reproduce it.
Over the past couple of years, social media has exploded the street art scene. Taking pictures in front of different murals and art along the streets of your favorite city has become a popular adventure for tourists. This brings about the question as to whether it is legal to take a picture of an artist’s work for your social media page. The action of taking a photo of someone’s piece of art and posting it somewhere is typically not illegal, nor does it infringe upon an artist’s rights. This is because of the fair use doctrine in Copyright Law.
Fair use is a law that most people use every day without even realizing it. “Section 107 of the Copyright Act provides the statutory framework for determining whether something is fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use” (U.S. Copyright Office, 2021). Examples of fair use include professors using pictures on slideshows from the internet or a reporter using a picture of a painting in their critique.
The primary factor that should be examined when determining whether a photo is infringing upon an artist’s rights is to examine the purpose of using the photo in question. If the photo of the street art is being used for commercial purposes or monetary gain, then it is not protected by the fair use doctrine, thus infringing upon the artist’s rights. Taking pictures for your social media platform without expectations of monetary gain from them is considered within the realm of fair use, even though it is not particularly educational. The reason behind this is that your picture, which usually does not include the entire mural and has you blocking a portion of it, will most likely not decrease the market value of the original.
Owning the rights to street art is just as contentious of a subject as the allowance of the street art itself. Each situation comes down to a case-by-case decision pertaining to whether artist’s rights are being infringed upon or not. Various stipulations and blurred lines appear throughout the decision process due to the confusing nature of the ownership of the art itself versus the property it is created on.