Is Photographing Graffiti copyright infringement?

Photo Tips Podcast: Is Photographing Graffiti copyright infringement? #37

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Transcript
Is Photographing Graffiti copyright infringement? #37

Zim: I've invited Michael Cukor back to the podcast to talk about what to do if your copyright is infringed and whether or not you're infringing somebody else's copyright when you're photographing street art. Michael is a founding partner of McGeary Cukor and Associates and is an intellectual property lawyer and his license to practice in New York New Jersey and DC. Hi Michael welcome back to the podcast thanks for joining me again.

Michael: Hi Zim. Good morning yeah thanks for having me back.

Zim: I have a burning question since we talked last which is, “What constitutes copyright infringement?”

Michael: That's a good question. Copyright is actually a bundle of rights: make use, distribute, create derivative works, sell. Those are all rights that are covered by the Copyright Act and included in the word copyright. So if someone does any of those things without permission from the author or the copyright owner, then that's a copyright infringement.

Zim: So if I post my image on Instagram and the Acme Building Company just takes that image and uses it on a billboard to advertise their company that's infringement is that correct?

Michael: Yeah that's definitely an infringement. That may be just am infringement of the right of copying. They may be creating a derivative to work by using your image and putting their logo over it or something like that, but that's definitely a copyright infringement.

Zim: Is there a legal way for someone to use my image without my permission and not compensate me for it?

Michael: There are a couple of defenses to copyright infringement, it’s still copyright infringements technically but there’s defenses to it. There's a fair use defense, which allows for people to use copyrighted images in certain situations. Primarily when they're non-commercial uses and then there's an argument that it's not copyright infringement when it's a de minimis amount. Which means it's been such a small copying or such a small taking of the actual copyright that it really doesn't count.

Zim: In other words if a teacher takes my image and uses it in the middle of a classroom environment as an example of composition that would be fair use?

Michael: That would probably be a fair use. It's a little bit of a fact specific inquiry each time. If you built a whole course curriculum, for example, on another photographer’s photographs and you were selling a class that you were teaching online or in person about that other photographer. Then arguably your use of those photographs is for commercial purpose, you're making money off it. Which arguably is a copyright infringement.

Zim: So what if someone take my photo and shares it on Facebook, either for their personal Facebook page or for their business Facebook page?

Michael: That probably happens a lot in real life right? People share each other’s photos. And I don't think copyright is really designed to prevent them from that kind of sharing; these kind of non-commercial uses, if you take a selfie of yourself and send it to a friend and they send it to another friend that's kind of expected with regard to personal photographs. But it becomes a little more complicated when people start using your photographs on their business Facebook page. At that point it may be a commercial use, if someone uses one of the photographs you've taken of the New York skyline and puts it on their business Facebook page, that may be because they're trying to drive customers to their page using your image. That's probably a commercial use and probably a copyright infringement.

Zim: So it's complicated.

Michael: It is complicated but I think the question you can ask yourself is, “Is someone making money off this?” Even indirectly “Are they making money off my art and am I entitled to that or entitled to at least a piece of it? As the artist am I being exploited?” If the yes the artist has created something that's being taken away and used for value without the artists being compensated, that may be a copy right.

Zim: Let's say they have used it it's definitely copyright infringement acme has put it on their Billboard how can I sue them for that?

Michael: Well until the end of last year this was a pretty straightforward question. The way you would do that would be to hire a lawyer and sue someone in federal court. Federal court was the only court that was available to adjudicate copyright infringement claims. And it's expensive to go to federal court. It's a big deal. You can be very big damages and it's worthwhile for a plaintiff to go to federal court, but it's a very formal and complicated process. And at the end of last year, then President Trump signed into effect a Covid relief act that created a small claims court for copyright infringement, that I'm not really that familiar with. It's just come into effect about a month and a half ago, and I haven't seen any cases that have gone through that system, but essentially what I know about it is that there's this new small claims court that's available for copyright owners, where it's completely voluntary, both for the copyright owner and for the defendants, so either one can opt out of it. But there are certain reasons that both parties might want to use it; it's quicker, it's cheaper, it's faster. And for the defendant's perspective there's less damages that can be awarded there.

Zim: So we're still hashing out those details on that legislation then it sounds like?

Michael: Well for me there is. I just haven't been there yet.

Zim: Now this is the other question. I think it's a fairly straightforward case if the Acme Building Company was located here in New York City where I am, but what happens if they're located in Kansas and the billboard went up in Kansas?

Michael: So there's a principle of the court can only have jurisdiction the right to issue an order over someone that the court has personal jurisdiction over. So if it's a company that just exist in Kansas and has no connection to New York and has never done anything or been to New York. Then it would be very hard for a New York court to issue an order that would affect the Kansas company. So in that particular case you have to go to where the defendant is, in Kansas, and sue them there. But a lot of times infringements happen all over the country at the same time, especially if they happen on the internet or on a service distributor or a product distributor like Amazon or eBay.

Zim: So I could, depending on the situation, force them to come here to defend themselves?

Michael: If the infringement happened here then yes or if you have jurisdiction in New York for another reason like they had a store in New York.

Zim: Back to the Kansas situation in that case would I hire a lawyer here so do I have to hire a lawyer in Kansas?

Michael: Well you can definitely hired a lawyer in New York and that lawyer can get admitted temporarily to the Kansas court to file your copyright infringement claims. And that's a process that that lawyer would have to go through. She would basically have to hire a local attorney in Kansas to help her with that process but then she could control most of the litigation from New York. Or you could just hire a local Kansas and turning that has experience in copyright law. That's a decision you want to make based on who you feel comfortable with.

Zim: What about internationally let's say some company in England; Acme building was in England and they use my work?

Michael: So to answer that question properly I'd say we have to hire an English lawyer to analyze it and make that determination. And then if there's a lawsuit to bring it would be through that English lawyer. I really couldn't answer that. But I can tell you that if an English company does a copyright infringement in the United States, you absolutely can sue them in the United States for that infringed.

Zim: But if they don't have a subsidiary here how would I force them to face trial here.

Michael: That's a complicated question and it believe it or not it comes up a lot. And it depends on how much business the company is doing in the United States. If they're not doing any business in the United States and really that means if they're not making any money from United States customers? It's pretty hard, if not impossible. But if they are? And they’re making money from U. S. customers, and that money somehow relates to the infringement? Then there's ways.

Zim: We've been talking a lot about is somebody steals my image. There is a concern for me with regards to infringing other people's copyrights. For instance I've taken pictures of graffiti and large pieces of sculpture that are in public places. Can I use those photos? Can I sell those photos or my infringing their copyright?

Michael: Like so many of the other answer is it depends. Certainly graffiti is art work and graffiti is protected when it's created; and street art is entitled to copyright just as any other piece of art is. So if you're taking a photograph of someone’s street art and the purpose of the photograph, or the composition of the photograph is such that you’re just capturing what's already been created, as if you're taking a photograph of someone's painting or someone else's photograph hanging in a gallery, then it's just pretty much a straight copyright infringement. And using that image, putting that image on a t-shirt or on a on a cap, that would be copyright.

Zim: If I take a picture of graffiti that's on a wall but I include the whole building, but it really is about that piece of graffiti but I include the whole building it sounds like I'm not covered.

Michael: Well the question that you said included” it's about that piece of graffiti.” And if it is, then that sounds like a copyright infringement. One of the areas where this is been litigated a lot, really does have to do with tattoos, interestingly enough. And it's in video games. So in a lot of basketball video games the players are depicted in very real life, and their tattoos are often featured in the video game. And the tattoo artists have been looking to sue the games for copyright infringement for use of their tattoo designs on the players. A lot of these cases have been resolved outside of court, but it does seem like the courts are looking to do some kind of analysis, where the question is how much of the tattoos being used? And how much of it is being featured? Is it just something that's incidental to the overall feel of the game to make it feel more realistic? Or is it being featured as something that is by itself driving customers to these video games, to be able to play this character with these tattoos? In that analysis it seems like it would be appropriate for understanding how your pictures of graffiti would be covered in your street scene photos.

Zim: You know one of the most famous images that we get in New York City is the picture of the Wall Street bull. If I take pictures of the bull and it's really a picture of the bull, it sounds like I'm infringing copyright.

Michael: You may be. I think that the bull was created by an Italian artist. And there was some issue about the copyright with that recently, when New York placed the sculpture of the young girl with the flowers near that. And I think the copyright artist for the bull, felt like that was an infringement of his copyright as a result of the kind of creating a derivative work or affecting his copyright control of how his work was going to be used. And I think that that was resolved without a final adjudication by a court. But there definitely is copyright owned in public sculpture. I don't know how often that is enforced but artists who create that copyright do own it. For example if you were to take a photograph of that bull and it really just was the bull and you decided to sell t-shirts or jackets with it then you may be facing a copyright infringement claim. Or if you make it the logo for your band I wouldn't be surprised if you were sued for copyright infringement.

Zim: That makes sense to me but what if I'm just showing the image of the bull in place, I'm not pulling it out of its location. It's in situ. That image alone, would that constitute copyright infringement within your view of things?

Michael: I think it's like the same analysis of if you take a picture of street art. If what you're doing is taking a picture of someone else's art and you're not really adding anything to it you're not transforming the work, your creation is not transformative, then it seems like a straight copy right infringement. The more that you add of your own creativity, the less of the original creativity of the original artist, the more you own in that copyright.

Zim: Sounds like we need to be careful on both ends of this is there anything else any other piece of advice you can give us?

Michael: I think that it's important for artists to think about their art in terms of “is someone else exploiting this? Is someone else making money from this that I should be entitled to a piece of that money? Or that I could be entitled to it, whether they want to or not. And there's lots of different ways that artists art gets used. For example, your art might show up on a product, let's just say t-shirts, that are sold on either Amazon or eBay, and when that happens you certainly have a copyright infringement claim against the seller on either Amazon or eBay. But it may be more advantageous for you to have a copyright claim against Amazon or eBay. And in order for you to do that you have to comply with the portion of the Copyright Act that gives Amazon or Ebay the opportunity to take down the infringing copyright; so the important part of this part of the discussion is: if you see your copyright being infringed, it's important to give the host of that copyright content notice so that they take it down. And in my experience a lot of these hosts like Amazon or eBay take it down pretty quickly.

Zim: Thank you so much. I appreciate you joining me I might have a couple more questions down the line. Hopefully I can reach out to you again.

Michael: Anytime.

Zim: Thanks for joining me Michael.