Use of street art

'Is it legal', 'can I do this' type questions and discussions.
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Use of street art

Post by brizzlemike »

Hello all, newbie with a query. I am part of a music group and we are going to be recording a CD this summer. The CD is going to be called Paintings and, as we are based in Bristol, we thought it might be cool for the cover to be of us in front of some graffiti, which Bristol is famous for.

I was wondering if we are legally able to have a photo which will be published on CD covers which features graffiti created by someone else. I guess Elliott Smith's "Figure 8" album cover would be roughly equivalent to what we might like to do.

Any thoughts very gratefully received! Thanks in advance.

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Post by AndyJ »

Hi Mike,

Street art is something of a grey area when it comes to copyright. There have been a number of academic papers published on the subject but to date the UK courts have not really had an opportunity to rule definitively. It is clear that a work of street art would, if it was made with the permission of the owner of the building, be subject to copyright. Indeed it seems reasonably clear that copyright will apply to all street art (see paragraph 2 of this judgment by Mr Justice Arnold for instance), but where the prior permission of the building's owners has not been given - ie most of the time - the street art and grafftti is criminal damage and thus, in theory, under the doctrine of equity, the courts should not enforce a right which arises out of criminal activity. But this needs to be viewed in the context that quite often the building owner, whilst not allowing it in the first place, is happy to ignore the criminal damage and seek to profit from, say, a Banksy graffito which has appeared on their walls. If the building's owner acquiesces post facto and declines to report the matter as criminal damage, then a civil court would not be able to take criminal damage into account just because it appeared to be so.

If we were talking about just Banksy's work then I think you could happily go ahead because he has been quoted as saying that he has abandoned any claim to copyright in his work. However for other perhaps less well-known or anonymous artists, this may well not always be the case. In most instances such works will be orphans in the sense that it is not possible to trace the copyright owner by means of a diligent search, even though the workname of the artist may be known. To that extent you could consider using the Intellectual Property Office's orphan works scheme to protect yourself against a future claim should the artist(s) concerned wish to run the risk of a criminal damage charge by identifying themselves.

Copyright law may offer a little assistance, however. Section 62 of the Copyright Designs and Patents Act 1988 permits the commercial exploitation of photographs of buildings and works of artistic craftsmanship which are situated in public places, without infringing copyright in those buildings or works. Technically speaking a mural or painting is not a work of artistic craftsmanship (see section 4), but the principle* (known as freedom of panorama in the jargon) might form the basis of a good defence, in the unlikely event that you were ever to face a claim from a street artist.

*This argument is reinforced by the much less restrictive wording to be found in Article 5(3)(h) of the EU Directive on the Information Society 2001/29 which allows member states to provide an exception to copyright for the "use of works, such as works of architecture or sculpture, made to be located permanently in public places".
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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