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I have been wondering that since a train company owns its locomotives and train cars, then I am assuming that this means that they own any graffiti that has been painted on their locomotives and train cars.

I have recently read that it is illegal for someone to put graffiti on any train company equipment, since it is an act of vandalism, so this makes me think that that any graffiti artist(s) who created graffiti on train equipment cannot get a copyright(s) on the graffiti that they put on train equipment.

If the graffiti thus belongs to the train company, then I am assuming that this means that the train company automatically owns the copyright(s) to this graffiti, and they would thus be free to take photographs of this graffiti and could display and/or sell these photographs to the general public, if they wanted to do so.

Is it legal for a train company to create an art gallery using photographs of the graffiti on their locomotives and train cars?

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    I can't think of an argument leading to the conclusion that the railroad owns the copyright. What seems more likely is either that nobody owns the copyright (it is in the public domain), or that the vandal owns the copyright but is not permitted to sue for infringement. Jul 31, 2023 at 20:56
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    They cut a Banksy out of a wall and sold it.
    – Jasen
    Aug 1, 2023 at 4:17
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    The graffiti artist could sue for infringement, but would risk being sued for damages for defacing the train; the latter is likely to be more expensive in most cases. There might even be the risk of criminal prosecution for criminal damage, trespass on a railroad, etc - crimes that are rarely prosecuted unless perhaps you were to confess in court. So in most cases they would not be advised to sue.
    – Stuart F
    Aug 1, 2023 at 12:15
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    @Jasen That doesn't involve making copies - you can sell any painting hanging on your wall, you own the physical instantiation. Banksy of course does not grant himself ownership of the wall by painting it, and the orthogonal question of whether the wall owner gains the copyright to the artwork isn't addressed at all by that scenario - selling a physical piece of art that you own isn't a copyright issue by the first sale doctrine. Aug 1, 2023 at 14:09
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    Many jurisdictions have freedom of panorama - copyright in a photograph of a work of public art belongs to the photographer.
    – Rich
    Aug 2, 2023 at 0:59

6 Answers 6

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Copyright law doesn't say the art isn't copyrighted if it was made unlawfully.

It seems the art can be copyrighted and the act of making it can be a criminal offence.

I'm not aware of any such copyright cases that have gone to trial.

A fairly well known case that settled out of court is that of Jason “Revok” Williams and H&M.

Williams noticed his art in a photograph used in an H&M marketing campaign. His lawyer sent a cease-and-desist letter to H&M.

In response, H&M applied for a court order stating that the product of an unlawful act could not be copyrighted.

Following some bad publicity H&M relented and settled with Williams. H&M stopped using the photograph and withdrew the application for the court order. (News source)

... The debate over street artists’ copyright privileges has entered courtrooms quite a bit over the past few years, according to Philippa Loengard, deputy director of Columbia Law School’s Kernochan Center for Law, Media and the Arts. ...

The [H&M] claim wasn’t surprising, Loengard said, but it also doesn’t hold up. At its core, a copyright requires only two things: that the work is original and that it is a tangible medium of expression.

[Loengard said,] “ … Copyright is not a legal or illegal sanction of the activity that was done to produce the work. Copyright is a separate entity.”

Another case settled out of court is that of Joseph "Rime" Tierney and Moschino. Tierney sued Moschino for using his art on its designs. One day before the court was notified of the intention to settle, Moschino sought to have the case dismissed on the grounds that unlawfully made art could not be copyrighted. (News source)

"As a matter of public policy and basic logic, it would make no sense to grant legal protection to work that is created entirely illegally."

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Aug 3, 2023 at 9:47
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No

You are conflating two different ownership concepts: the art in which the copyright exists, and the artwork that is the expression of the art (my terminology).

The artist owns the art, the train company owns the artwork.

Copyright exists in an artistic or literary work as soon as it is fixed in a tangible form and the author is the owner of that copyright. The owner of the artwork is the person who owns the substrate that the expression is made on. So if I write a novel on your paper or computer, then I own the copyright in the novel, you own the physical paper or Word document.

It doesn’t matter if I have your permission to use those things or not. If I don’t have your permission then what I did might be illegal and lead to my arrest or you seeing me for damages but I still own the copyright. It would be an interesting question to consider if the State could seize my copyright under proceeds of crime legislation but that’s beyond the scope of this question.

So, no, the train company cannot take photographs of the art and publicly display it. They can take photographs of their trains, which would incidentally contain the art, and display those. There’s a line there that a court would have to find should it ever come up.

They can display the trains as an art display because they own the artwork. They could even cut the vandalised parts off the train and display those. What they can’t do is copy the art.

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Aug 1, 2023 at 21:41
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I have been wondering that since a train company owns its locomotives and train cars, then I am assuming that this means that they own any graffiti that has been painted on their locomotives and train cars.

Correct.

If the graffiti thus belongs to the train company, then I am assuming that this means that the train company automatically owns the copyright(s) to this graffiti[.]

Not correct. If you buy a copyright-protected painting, you own the painting, but you do not own the copyright in the painting. Similarly, if an artist creates a work on an object you own, you own the work, but the artist owns the copyright. Because the train company owns the work, it can do certain things with the work including destroying it or selling it to someone else, but they cannot sell copies of the work without permission.

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Maybe kind of (Speculative), but probably not, but it probably makes no difference.

If the fact that it is on the train forms part of the artwork, rather than being merely a canvas, the whole piece (graffiti plus train) might be argued to be a derivative work of the train livery, which if it has distinct visual elements such as logos or other artwork, will certainly be protected under its own copyright.

If that's the case, the graffiti may not be protected by copyright as an unauthorized derivative work. While this doesn't mean the proprietor of the train livery owns the copyright to the graffiti, it might mean the graffiti artist cannot claim copyright, or if he can, is subject to a counter-claim for copyright violation themselves.

This would protect the train company from a copyright claim, but wouldn't mean they owned the copyright themselves.

This is very speculative, it is probably more likely that a court would not find a derivative work, but this would depend on the facts of the particular graffiti, and whether and how it incorporated elements of the train livery into the overall piece.

Consequences for the train company

The train company is basically safe here. Copyright violation is a civil offence, and remedies would likely be limited to financial loss and an order to stop making copies.

However in order to assert his rights, the graffiti artist would have to reveal himself, which would subject him to criminal penalties for vandalism, and a civil claim for the costs of cleaning or repainting the train.

If the train company are also able to claim for "unjust enrichment" (depending on local law) then they might be able to take the whole value of the copyright, or even the copyright itself.

The "artist" is unlikely to come out ahead.

Disclaimer: I am not a copyright lawyer, or a lawyer.

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    Livery would be more likely to be trademarked than copyrighted - a train's paint job is an indicator of brand, not an artistic work. UPS, for example, has trademarked their shade of brown and logo, but each of their delivery trucks does not represent a copyrightable work. There is no such thing as a derivative trademark. Aug 1, 2023 at 13:07
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    @NuclearHoagie Unless thei train cars were already painted with artwork?
    – gerrit
    Aug 2, 2023 at 7:54
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    @NuclearHoagie If the train is just painted a uniform colour, then I imagine no that's not copyrightable. But trains and planes often have other things on them, such as logos or other designs which have their own copyright. In addition, something like a logo can be both a trademark and have copyright.
    – Ben
    Aug 2, 2023 at 17:22
  • @NuclearHoagie But that's a good point, if the livery is plain it's probably not copyright. I've updated my answer.
    – Ben
    Aug 2, 2023 at 17:25
  • Derivative works are still copyright protected. It's just that the derivative work's creator doesn't get sole copyright ownership - only by consent of both creators can the work be copied. Yes, it's not a very practical law. As a practical matter, though, enforcing copyright for an illegally created work is difficult and rarely practical.
    – Therac
    Aug 2, 2023 at 20:13
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It's an occasion where the train company could claim "fair use" in the USA. Or say that it is criticism etc.

Now if there was graffiti on some part of a train, and the train company removed that part, replaced it with a clean part, and put the part with the graffiti into an exhibition, then they wouldn't have copied anything, so copyright is irrelevant.

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  • This is an interesting point you make. It makes me think that perhaps a train company could put a certain number of locomotives and/or train cars into a large warehouse and then charge an admissions fee to the general public for access to this 'art gallery' warehouse.
    – user57467
    Aug 2, 2023 at 16:02
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    @user57467 They definitely can. By using their train as a canvas, the artist has effectively gifted them the artwork. But not reproduction rights to it.
    – Therac
    Aug 2, 2023 at 20:15
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Any answer seems necessarily based on speculation, as it's not something that has enough precedent to have any meaningful answer. Even if you find a case here or there that "settled" the matter, said case isn't particularly likely to hold up in a new court setting.

However, I would argue the answer is yes, based on two points.

First, the fact that the graffiti artist has implicitly given the design to the train company.

If I broke into your house and left plans to build a new kind of train, it seems unlikely anyone would dispute that I had given you both the plans and the right to use them (presuming I held the copyright to begin with).

Aesthetic art is different from engineering plans, but I think the argument can still be made. Also, graffiti is necessarily a one-off design, so you can't really argue that the graffiti artist is losing anything in the process.

Second, that the train company is losing money by having to clean or re-paint the train car as a result of the vandalism. So it's perfectly fair for them to attempt to recoup some of that money by selling the art in question.

This isn't "fair use" in the standard, technical sense of established copyright law. But it's still a fair use.

Realistically, any lawsuit against a train company for illicit gains through any copyright infringement would pale in comparison to the counter lawsuit by the train company for repairs due to vandalism. So it seems that a good attorney could simply agree that the train company owes the artist a few dollars for the copyright infringement, which will be deducted from the thousands of dollars the artist owes for new paint.

At the end of the day, it's unfair to the train company to make them pay for both lawsuits, and the copyright claim, and the vandalism, but that's what would happen if the lawsuit continued. By pointing out that this is the reasonable result of any set of lawsuits, the train company's attorney might well get the entire thing thrown out nearly immediately.

Also, there's probably a large disparity in attorney fees. The train company will have spent tens of thousands on their attorneys (which the graffiti artist would have to compensate for in the vandalism claim), while the artist likely hired someone for a few thousand dollars, if they hired anyone at all (which the train company would have to compensate for in the copyright claim). This makes the net total the artist should pay even larger, further increasing the validity of a dismissal.

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