As photographers, it is often second nature to snap eye-catching landscapes, urban settings, and other aspects of Street Photography. Interesting backdrops are what draws us in, and graffiti is excellent scenery for a shoot. We may then want to use these images in an Exhibition, or sell them as prints – But can we?
Can You Sell a Photograph of Graffiti? The safe answer is no. In the United States, the law dictates that the artist holds the copyright to their artwork and can take legal action. However, there are a lot of factors and issues to think about when looking into selling an image containing Graffiti or Street Art.
We will be talking you through the essential factors to address when making the decision to sell a photo of graffiti and discussing the ethics and laws behind it.
What is the Difference Between Graffiti and Street Art?
Graffiti is a form of art found on street walls or buildings in public areas. It is most commonly created using paint or spray paint. Graffiti is frequently used to describe painted words and letters, whereas the term ‘Street Art' (or ‘Urban-Art') is used to describe more image-based public artwork. There is also a less commonly known term for a mix of both words and images, which we would call ‘Graffiti-Art.'
In most cases, graffiti is illegal and is seen as a form of vandalization, rather than a form of art.
Street Art, on the other hand, can be legal if the artist received permission from the property owner beforehand creating art.
What Are the Laws on Selling Photographs of Graffiti?
Not every single piece of graffiti will hold the same copyright rights, and some won't be entitled to any at all. It is better to be safe than sorry. However, there are steps you can take in your favor.
The first thing that needs to be considered when selling a photograph of graffiti or Street Art is the laws behind who owns the copyright. In the United States, copyright law dictates that the artist holds the copyright for their artwork. According to the ILN IP Insider,
“Graffiti and street art can be protected by the law like any other art form. For example, in a widely publicized decision earlier this year, a federal court in the Eastern District of New York found that street art painted on the famous “5Pointz” in Long Island City, Queens was entitled to protection under the Visual Artists Rights Act of 1990.”Source: Street Art, Copyright Infringement, and De Minimis Use
Generally, wording alone will not be entitled to copyright protection. However, according to the ILN IP Insider, at least one court has found that “stylized lettering in graffiti art was protectable.” Elements such as the artist's choice of color or background have been found to sway the court into allowing for copyright protection.
The photographer may still hold the copyright for a photograph taken of the art. However, they must not use this image to generate a profit. For example, selling the image as a print, showing it in an exhibition, or using it for commercial use are all illegal — unless the copyright owner grants permission to use the image.
It is often hard to distinguish what is classified as legal Street Art and what is considered as graffiti as there can be a fine line between them both. The copyright act does not protect some pieces, and therefore in these cases, it would be legal to photograph and use them for monetary gain. However, in this situation, the main factor to consider when profiting from someone else's artwork would be the morality of doing so. If someone were to take a photo of your work and sell it, would you be happy?
The Ethics Behind Photographing Graffiti
If you are considering photographing public art, the rule of thumb should be that the art in question should be shown within its environment. If you were to just snap a photo, framing only the graffiti in the shot, then you are making a copy of the artwork rather than incorporating it into your setting. Present the piece of Street Art within context and incorporate it into a bigger idea.
An excellent way to think about it is to imagine a musician wanting to sample another musician's music. It is ethical and lawful to sample a piece of music to create a new composition. However, downloading the original song without compensating the musician is unethical. It is also usually a breach of copyright – especially if the work is redistributed.
What Are the Moral Rights Behind Photographing Graffiti?
Gaining consent from the artist is a must when selling photos of graffiti. This will keep you from getting into trouble both morally and legally. It is highly likely that you will need a License Agreement when you seek the artist's permission. If you want to know more about how to do so, one source you can check out is Getting the Deal Through. With a Licensing Agreement, the artist still has ownership of their work; however, it gives you the means to use the art legally without the risk of ending up in court.
American Eagle was involved in a copyright scandal over its use of graffiti art. The company did a full commercial photoshoot in front of a piece of Street Art owned by Miami-based street artist Ahol Sniffs Glue – otherwise known as “Ahol,” or David Anasagasti.
The artist sued the company for Copyright Infringement when he noticed that American Eagle had used his art to sell their clothing. The promotional material popped up on Billboards, online-ads, and social media, such as YouTube and Instagram. It had the American Eagle logo but did not acknowledge the artist. It's been rumored that the store even hired a bunch of Street Artists, at an opening in Colombia, and asked them to recreate David's original piece, adding the American Eagle logo over the top.
Moral rights are different to copyright rights, and this can be a confusing matter for companies and photographers hoping to use a piece of Graffiti or Street Art. Copyright Law recognizes the rights of the artist, and helps in an economic matter, preventing the art from being illegally distributed and sold. Moral rights are personal, protecting the integrity of the artist and their work, and protecting their reputation as an artist. It allows the artist to control the use of their creative work.
Even if a piece of art hasn't been copyrighted, there is still a chance unfair usage of the work could fall under the moral right's guidelines.
Ask for the Artist's Permission
Always ask for the artist's permission – the simplest and safest rule we can give you. It can be challenging to find an artist of a piece of Street Art or Graffiti, as some don't sign or leave a name. However, do your best to Google the area and art to see if their name pops up on any forums or websites. Once you have found them, just ask! Of course, they have every right to say no, and they may disagree. If this happens, at least you tried, and you protected yourself on a legal level!
If they agree – great! Make sure you discuss with them how and where you will be using the piece so that there are no nasty surprises further down the line. Make sure you ask the artist whether they would like you to credit their name, or they would like to remain anonymous.
The Law on Graffiti
The laws on whether you are permitted to use a piece of graffiti in your photography work may vary from place to place. This is why you should both research the copyright laws in the area where you photographed the artwork and try to contact the owner and ask them for permission. Doing both of these things can give you clarity and peace of mind that you will not end up in any sort of legal trouble.
If you cannot find this information anywhere, your safest bet would be to use the photography for personal use only, and not for monetary value or commercial use.
As photographers, we usually love to travel to new surroundings. Often we will find places online and travel to that specific destination for a shoot. If you have found a piece of Street Art online and are thinking of visiting to capture it on film, make sure you are aware of that area's laws. Do some research first, to protect yourself and your photography business. Get a head start, here: Street Art, Know Your Rights.
Taking photographs of graffiti can be tricky. If you take the time to do your research and reach out for consent, you can capture some amazing images, whether it's a Landscape, Street, Urban, or Portrait shoot. If you're just an amateur photographer shooting for fun, you're in the clear!
If you're specifically looking for some fantastic Graffiti locations to shoot, some areas have entirely legal walls of graffiti that you can photograph to your heart's content! For some more information on legal graffiti walls in the US, click here.