Timeline for Does this image with a subject containing graffiti in the background infringe on the graffiti artist's copyright?
Current License: CC BY-SA 4.0
23 events
| when toggle format | what | by | license | comment | |
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| Feb 16, 2019 at 2:37 | comment | added | David Siegel | @nikk wong I have added an extensive discussion of the illegal graffiti issue to my answer. | |
| Feb 16, 2019 at 2:36 | comment | added | David Siegel | @Acccumulation I have added an extensive discussion of the illegal graffiti issue to my answer. | |
| Feb 16, 2019 at 2:34 | history | edited | David Siegel | CC BY-SA 4.0 |
unauthorize grafitti
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| Feb 15, 2019 at 22:39 | comment | added | nikk wong | I do have evidence of written permission in the form of emails. However, Instagram's content review mechanisms did not seem robust enough at the time to allow me to submit them. The images were taken down, account received a strike, and that was that. I'm still at a loss as for what to do, but I appreciate all the support and feedback. | |
| Feb 15, 2019 at 22:37 | comment | added | Krupip | @nikkwong That first offense probably could have been avoided if you had evidence of written permission to use the artists work. Then, you could contact Instagram and notify them that the artist had previously given permission to share their work, and that they had not contacted you stating they wanted it revoked. | |
| Feb 15, 2019 at 21:26 | comment | added | nikk wong | Given the nature of my product (helps photographers take photos) I sometimes share photographer's images on my instagram when they give me explicit permission. I had one instance where a photographer decided he no longer wanted his image shared on my instagram and decided to complain to instagram rather than have me take it down. I guess that legally casts me as a repeat offender, but after that first offense I've been trying very hard to comply, and to have this be the straw that breaks the camel's back, given the fact I didn't know I was infringing, makes me sad. | |
| Feb 15, 2019 at 19:30 | comment | added | Andrew T. | @nikkwong based on Instagram's help center, it seems it's not the first time you infringed copyright? | |
| Feb 15, 2019 at 18:02 | comment | added | David Siegel | @Acccumulation alj.artrepreneur.com/6-copyrights-street-art says: "The plain text of the law makes no distinction between original works hanging in a museum and those spray-painted on an irate stranger’s property. " as goes on to say that some have questioned if such things should be copyrighted, but no court seems to have so held. As to your example, I doubt that a smashed window would have enuf originality to be protected, and posting to inform people about the even would likely be fair use if it were. But if someone drew a pic on your car, it may be protected. | |
| Feb 15, 2019 at 17:31 | comment | added | Acccumulation | @DavidSiegel The idea that vandalism is protected by copyright seems absurd. By that logic, if some smashes my car window, and I take a picture of the smashed car window and post it on the internet, I've committed copyright infringement. | |
| Feb 15, 2019 at 16:13 | comment | added | jeffronicus | That's a pretty good analysis. I'm pretty sure the normal practice for use of such images for promotional purposes -- which seems to be the case here -- would be to get a license for the background art, which is why, for example, television production companies paint over local graffiti when shooting on location and use abstract paintings as decorations on interior sets. | |
| Feb 15, 2019 at 15:41 | comment | added | David Siegel | @ Kamil Drakari I added the relevant quote and a link to the full court decision. The court here seems to mean that so little was taken from the original that that alone would not have qualified for copyright. | |
| Feb 15, 2019 at 15:39 | history | edited | David Siegel | CC BY-SA 4.0 |
add link to and quote from case
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| Feb 15, 2019 at 14:24 | comment | added | Kamil Drakari | Do you have any more information about what "can't be copyrighted" means in the third case you list? The way it sounds to me is that the modified image was considered a "fair use" derivative of the original photo, but not so distinct that its creator(s) would be permitted to make claims against others using that modified image without their permission. Is that the correct interpretation? | |
| Feb 15, 2019 at 13:48 | comment | added | David Siegel | @zibadawa timmy "Clean hands" is generally an equitable doctrine, and I wouldn't think it usually applied in copyright cases, but I can't say for sure. I am not aware of any case on the issue or anything close to it, but I haven't tried to search for such a case yet, and while I know copyright law fairly well, i am not a lawyer. If I find a case, I will post a link or cite. | |
| Feb 15, 2019 at 5:10 | comment | added | zibadawa timmy | @DavidSiegel I'm kind of thinking in terms of "clean hands" doctrine, here. If the graffiti was created illegally, then does the artist really have the option of using the courts to protect the fruits of that criminal endeavor? I'm fairly sure there should be precedents on this (and I have a vague feeling they agree with you), even ones specifically about graffiti art, which would be nice to have included if you can find them. | |
| Feb 15, 2019 at 4:58 | comment | added | David Siegel | @zibadawa timmy I wouldn't think so, no. A work of art is a work of art, and it is copyrighted at creation. The owner might have the right to destroy it if it was unapproved, but not to copy it. | |
| Feb 15, 2019 at 4:35 | comment | added | zibadawa timmy | Would the legality of the original graffiti be a factor? Does it matter if this was a commissioned and approved (by the property owner/controller) piece of art, versus someone surreptitiously creating it without any approval from the city or property owners (as relevant)? | |
| Feb 15, 2019 at 4:32 | comment | added | D Krueger | Does Seltzer v. Green Day have pertinence here? (IANAL) | |
| Feb 15, 2019 at 0:21 | comment | added | David Siegel | @nikk wong It is surely a shame that you lost your account over this. They should have allowed you to just take down the one image, IMO. And it isn't clear cut that this is NOT fair use, you can use that and good intentions in an appeal, i hope. However one should expect that publicly posted art is protected, IMO. An artist should be able to share art by posting it on the street or on the net without losing control of who makes further copies, IMO. Anyway, such is the law. | |
| Feb 15, 2019 at 0:15 | comment | added | nikk wong | It's very much a shame because I posted this image on Instagram and the artist claimed copyright infringement and got my entire instagram account (had 10's of thousands of followers) deleted. Had I had known this was not fair use I would never have posted it. I could easily have cropped that background out and added a different one. Now given what you said, I am not sure how I will make a case that I deserve the account back. It is a shame that people can claim copyright on art that's publicly available on a street. One would not expect that. | |
| Feb 14, 2019 at 23:54 | comment | added | David Siegel | @nikk wong The ad company can always attempt to license the background image. The artist's terms might not be unmeetable. Or they can just go ahead, and gamble that the artist will not have the upfront cash to sue, or will lose. In any case fair use is an exception, intended for the public good. It is also complex and uncertain in anything but the most obvious cases. Most countries do not have it at all. | |
| Feb 14, 2019 at 23:47 | vote | accept | nikk wong | ||
| Feb 14, 2019 at 23:13 | history | answered | David Siegel | CC BY-SA 4.0 |