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Here's the image in question:

Image in question

Basically, the subject in the foreground is showcasing a company's product for an advertisement. The graffiti holder has argued that the image infringes on their copyright. My guess would be that this image does not infringe on the copyright, because it is novel and the graffiti is not the subject matter in the photo.

The applicable jurisdiction here would be the state of California.

EDIT

The building that the art was placed on has been abandoned for many years, therefore giving me the impression that the art was illegally placed. A recent google street view image has identified that the building has been condemned and is the future location of a Boys & Girls Club SF:

(you can still see the top of the artwork in question in the link below, if you look closely above the retaining wall to the south east).

https://www.google.com/maps/@37.7833553,-122.4099403,3a,75y,115.75h,91.36t/data=!3m6!1e1!3m4!1sAF1QipP6ITMX-YKQ0z4JaGpbcEliZmC0KahDOcDdo6CQ!2e10!7i11000!8i5500

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    In the US, copyright is entirely a matter of federal law, so the jurisdiction here is United States. I have so tagged it. – David Siegel Feb 14 at 22:22
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    The term "graffiti" generally refers to vandalism. Was this a legal work of art? – Acccumulation Feb 15 at 17:30
  • @Acccumulation, I don't think it matters to the copyright issue. In any case "graffiti" is also used for informal but legal mural street art. – David Siegel Feb 15 at 17:32
  • Since this is apparently related to Instagram, you might be interested in reading Instagram's help center for "Copyright" – Andrew T. Feb 15 at 19:25
  • Even just casually from a non-lawyer perspective, this does not seem like fair use. If it were a photograph of a larger scene where the graffiti just happened to be visible in part of it, there would be a good question, but here the entire composition is based on the graffiti. If you didn't care about having it there to make the photo stand out, the same subject could have been photographed in a studio or anywhere else with nothing specific to the location lost. – R.. Feb 16 at 3:21
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You are in effect asking if this is a case of Fair use, an important US-specific legal concept in copyright law. Please review this question for an overview of fair use. See also This statement from the US copyright office

Deciding whether a use is a fair use is always a fact-driven, case-by-case, process. No one ever knows for sure if a use is a fair use unless that specific use is challenged in court as infringement, and the fair use defense is raised and sustained or not.

Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission. ("More Information on Fair Use" -US Copyright office)

Factors

Let's look at the fair-use factors in the case of this photo:

  1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: The use is apparently for clearly commercial purpose. This tends to weigh against fair use, but does not rule it out. Then the is the question of whether the use is transformative. The background image apparently serves its original decorative purpose. Whether making it part of an ad is transformative might be debated.

  2. Nature of the copyrighted work: The graffiti is an artistic and creative work, not a work of non-fiction or news reporting or factual information. This also tends to weigh against fair use.

  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: It seems that almost all of the work of graffiti, or at least a significant part of it, is being used. This tends to weigh against fair use to some degree. moreover, the work of graffiti is quite prominent in the background of the work, which ,means it makes a significant contribution to the final work, which also weighs against fair use.

  4. Effect of the use upon the potential market for or value of the copyrighted work: If the work of graffiti is currently being marketed, the question does not say so, and i would suppose that it isn't. There could be a potential market: the artist could make photos or prints of the work and market them, for example. Even so, this image probably wouldn't affect such a market much. This factor probably inclines towards fair use, but it is hard to say just how a court would asses it.

Case law

  • In Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997) A poster of a “church quilt” was used in the background of a television series for 27 seconds. This was held not to be fair use. The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church, and the fact that it was a conventional practice to license such works for use in television programs. This case seems particularly close to the one in the question.

  • In Bill Graham Archives v. Dorling Kindersley Ltd. 448 F.3d 605 (2d Cir. 2006) posters of Grateful Dead concerts were reproduced in a book. This was held to be fair use. The reduced size of the images, and their appearance in the context of a timeline were considered significant.

  • In Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014) A modified photo of a Wisconsin mayor was reproduced on a Tshirt and used to raise money for an event. the photo was posterized, background removed, text added, and a lime green outline featuring the mayor’s smile remained. The resulting image of the mayor, the court stated, “can’t be copyrighted.”

Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low-­resolution version posted on the City’s website, so much of
the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-­screening),
the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.

(I take this to mean that the elements actually copied do not have enough original content to be a copyrightable wqrk.)

  • In Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003) use of thumbnail images in search engine results was held to be fair use. The reduced size and image quality were significant to the court. So was the transformative use of the images to help identify and index the pages.

Conclusion

This is not a clear-cut case, in my view, but the case for fair use does not seem strong to me.

Copyright protection of Unauthorized Graffiti

A number of comments and some other answers have raised the question of whether graffiti made without the permission of the owner or tenant of the location, and therefore illegally, are entitled to copyright protection.

The first thing to say is that there is nothing in 17 USC (the US copyright law) that conditions copyright protection on the legality of the work, or of its publication.

Case law on this precise issue is not easy to find, nor does there seem to be much of it.

IPWatchDog's "Preventing a Graffiti Copyright Infringement Lawsuit" (2018) says:

Several high-profile companies, American Apparel, Coach, American Eagle Outfitters and H&M who shot advertisements in public spaces, have found themselves inadvertently in the midst of such legal disputes with street artists. Even though an advertiser may have had permission from the property owners, even though the “artwork” was unsanctioned and unsigned or “tagged,” the graffiti artists have come forward after the ads were already in circulation, identified themselves and sought compensation and damages.

It goes on to say that:

These cases tend to be settled out of court, because regardless of the merit of an infringement claim, they are costly to defend and the unwarranted negative publicity can injure a company’s reputation. ... Also, from a legal standpoint, the question of whether the copyrights of illegally created street art are valid has not yet been determined – so there would be some element of doubt as to how a litigation would be decided.

*The Atlantic's article "Can Graffiti Be Copyrighted?" about the case of graffiti artist David Anasagasti's case against American Eagle Outfitters for use of his work (and several other similar suits) quotes Philippa Loengard, assistant director of Columbia Law School’s Kernochan Center for Law, Media, and the Arts as saying:

Given what I know of the case, this is one of the most blatant examples of copyright infringement

None of the suits mentioned in the story seem to have resulted in a court decision as yet.

In Falkner v. General Motors Company, the trial judge held that the art was not "part of" the building and thus the exemption for photos of architectural works under 17 USC 120 does not apply. However it denied plaintiff’s DMCA claim and his claim for punitive damages.

The court held that:

because the facts in the record tend to establish—if anything—the lack of a relevant connection between the mural and the parking garage, the Court cannot hold as a matter of law that the mural is part of an architectural work under Section 102(a)(8). Thus, it cannot reach the issue of whether Section 120(a) applies to the mural to permit photographs of the mural.

In an article in the N.Y.U. Journal of IP & Entertainment Law "Protecting Artistic Vandalism" author Celia Lerman argues that copyright should protect unauthorized, illegal graffiti art.

This article notes that:

Graffiti pieces increasingly attract the attention of numerous collectors, gallery owners, publishers, filmmakers, and journalists. Pieces from famous graffiti artists have sold for hundreds of thousands of dollars in the art market. Graffiti pieces have even been given as diplomatic gifts. Galleries are seeing record attendance at exhibitions of graffiti works, and publishers have generated a boom of photographic books on graffiti and street art. (citations omitted)

The article notes that Tattooed Walls a book by Peter Rosenstein about NYC Graffiti, reproduced images of many works of graffiti without permisison, the author believed that these were fair use because they were posted in public places. Several artist sued, a settlement was agreed to, and the book was withdrawn from publication.

The article mentions a suit against Tony Hawk’s Pro Skater 2 Official Strategy Guide, by the author of a work of graffiti which was reproduced. The suit was initially dismissed for lack of copyright registration, but the court said that it “assumed, without deciding, that the work is copyrightable.” When the suit was refiled after registration, a motion to dismiss was denied, and the parties then settled, so there was no court decision on the merits.

Other simialtr cases are mentioned. The article goes on to analyze the law and the purposes that copyright law serves, and give reasons why such works should be protected. But none of this cites an actual case where an illegal graffito has been held protected.

The Falkner case will not produce such a ruling, because the art in that case was authorized, indeed invited, by the building owner.

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    @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. – David Siegel Feb 14 at 23:54
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    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. – nikk wong Feb 15 at 0:15
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    @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. – David Siegel Feb 15 at 0:21
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    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)? – zibadawa timmy Feb 15 at 4:35
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    @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. – zibadawa timmy Feb 15 at 5:10
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In the US, architecture can be copyrighted (works created on or after December 1, 1990), so you can't just copy a building, in whole or in part. But "Architectural copyright does not apply to pictures if the architectural work is regularly visible from a public place." Wikipedia

(Not so lucky in France, where they treat a photo of the Eiffel Tower (1889) as if you are stealing the Eiffel Tower by making a copy of it. Sweden took a similar despicable stance. https://alj.artrepreneur.com/copyright-public-art/)

In the USA, you can photograph a sculpture in a public place and you hold copyright on the photos. (article written for artists) http://cjam.info/en/copyright-and-taking-pictures-of-sculptures-2/

But most discussions say you can't use photos of public artworks any way you want. http://wallpapered.city/blog/basic-copyright-issues-in-outdoor-mural-projects/ ; https://alj.artrepreneur.com/6-copyrights-street-art/ Photos for your personal use or for publication in reporting are not a problem, but "commercial use" is a problem. In other words, the copyright holder could have a claim if you actually use the photo for promotion, but merely posting it on Instagram (and here), in itself, probably is not a violation at all.

It is beyond despicable that Instagram would delete your account over one possibly baseless complaint. No matter what, they should reinstate your account (minus the one image, pending resolution). (Do you have other "strikes?) Did Instagram get into the photo-sharing business yesterday?[sarcasm]

If the painter sold the rights to the painting, your photograph cannot violate their rights because they don't have any. Whoever bought the rights could have a claim, or be the one to grant (give or sell) you permission. Maybe the building owner purchased the rights. Consider asking them whether they own the right because you want permission to commercially use the image of their wall art; you might be surprised.

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    It is not pictures of the Eiffel Tower that is in violation of copyright, it is pictures of it in night time with the lights on. – Bent Feb 15 at 7:51
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    I don't see the relevance of your first two paragraphs. You can't even tell if the woman is standing in front of a building or some other wall, so it seems pretty clear that no rights of the architect of that vertical piece of concrete are being infringed. – David Richerby Feb 15 at 11:05
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    cjam.info/en/copyright-and-taking-pictures-of-sculptures-2 is discussing and citing Canadian law, not US, and this is an area where US law significantly doiffers from that of Canada. – David Siegel Feb 15 at 13:55
  • @A876 "Photos for your personal use or for publication in reporting are not a problem, but "commercial use" is a problem." This is not US law, or do you have a cite for it? Of the articles you link, one is on Canadian law, and the others merely cite 17 USC 107, the fair use rule, where personal use is significant, but not detrminantive. Can you back up an absolute rule of permission for personal use of such copies?. – David Siegel Feb 16 at 2:43
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Focus: "Thinking outside the box". Different approach than the usual ones liable to be suggested here.

I "know nothing" legally and am not US based, but offer the following based on a longish lifetimes understanding of the generally understood place of graffiti in society.

It seems reasonably possible that the graffitoiser [tm] is attempting an opportunistic exploitation of a 'right' which they do not legally possess.

In most cases "graffiti" is at best an informal non-authorised 'equal rights to any other similarly unauthorised use' of a space or surface.

Taking a paint brush and creating your own 'work'* in its place, or a nice artistically pure white or black surface, or a new "work" that retains perhaps the portion as seen here but which replaces all "out of image" portions so the new work forms a majority of the final result, may be as fair-a-use of the space as any other. Creators of graffiti may in some cases respect the prior 'works' of others or avoid defacing areas with formal content deemed of artistic merit BUT equally, may without apparent concern, create new 'works' over part or all or several other existing 'works' by others.

That action, or suggesting that it is a 'just as legitimate' possibility, may influence outcomes.

In many cases "at best" does not apply and such "works" are illegal, and may be both illegal and unwelcome.

I ("knowing nothing") might expect that a "work" would need to somewhat exceed the above "at best" criteria to have claims re its misuse taken seriously.


  • I have used the term 'work' or 'works' a number of times above as a means of referring to a graffiti 'creation'. This is not to either suggest that anything so indicated has any artistic or other merit, or that it has not.
  • There seem no clear legal basis for the distinction you make. Any work of minimal originality that is fixed in a tangible medium is by law protected by copyright, and no US court has yet announced an exception for illegal graffiti. See my answer above. – David Siegel Feb 16 at 2:39
  • There's already an extensive answer on this from someone who does understand the legal aspects, which is what this question is about, being on Law.SE. I don't see the purpose of this answer at all. – Chris Hayes Feb 16 at 9:55
  • @DavidSiegel I read your answer before commenting. You seem (but may not have) to miss a key point of mine which is that graffiti which is NOT specifically 'legal' may 'legitimately' be overwritten or modified to the extent that it ceases to exist as the original work. It may well be legally copyright but common observance is that it is not legally inalterable or eraseable at the whim of any who wish to do so. This may incur the displeasure of the originator and possibly retribution, but seems unlikely to be legally preventable. – Russell McMahon Feb 16 at 11:04
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    @ChrisHayes It's the norm in SE groups for more than one answer to exist. I read what was there before I responded. It comments were allowed to be longer it may have been a comment. But: I understand the focus of the group. I consider that my answer suggests an alternative approach to solving the 'problem' posed by the OP. You may perhaps be enough focused on the way such questions are usually addressed here to "not see the purpose ... at all". Perhaps :-). – Russell McMahon Feb 16 at 11:09
  • @Russell McMahon I did not miss that point, although i did not refer to it in an answer already rather long, and it was made explicit in some of the sources I cite. Copyright does not grant protection against erasure, and insofar as it grants protection against alteration, it seems that graffiti artists choose not to enforce it. But that does not mean that they may not legally prevent copying and exploitation without their permission. – David Siegel Feb 16 at 14:57

protected by BlueDogRanch Feb 16 at 0:34

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