Guide Through the Legal Jungle

Copyright, Trademark and Other Legal Concerns for Visual Artists

While artists need not be legal scholars, there are a few fundamental principles they can embrace to prevent legal problems from creeping into their artwork. I discuss some of those principles as a guest on the ArtMarketingNews.com blog. Here is a brief summary of the tips I shared:

Be Aware of the Most Significant Art-Related Laws. As part of their creative process, artists should consider if their work raises any copyright, trademark, privacy and defamation issues – as well as whether the First Amendment’s protection for artistic expression offers them any leeway in those areas.

Heed the Fine Line between Legal Inspiration and Infringing Copying. An artist’s duplication of another artist’s idea or concept is copyright-permissible. Duplication of another’s artistic expression in rendering that idea or that concept is not. However, it is not always clear where the idea ends and the expression begins.

Know When Taking Photos in Public Goes Too Far. Even though photographers have wide latitude to take photos in public, there are situations in which taking photos in public might be problematic. Aggressive paparazzi behavior is one of them.

Understand How You Can Depict Real People in Your Artwork. The permissibility of publishing images of other people depends on whose image you have and how you want to use the image. I offer some general guidelines and examples to determine which uses are permissible and which uses are not.

Understand How You Can Depict Products in Your Artwork. Companies can react negatively to the unauthorized appearance of their brands, products, and trademarks in media. Courts have sanctioned the unauthorized appearance of products in artistic photography when the use is for social commentary and is not misleading. In contrast, an unauthorized product appearance in a commercial context can have dire legal and financial consequences on the unauthorized user.

You can read the entire article, “Five Tips for Artists to Avoid Copyright, Trademark, and Related Legal Problems”, here.

Does the Fearless Girl Violate the Copyright of Wall Street’s Charging Bull?

In the late 1980’s, artist Arturo Di Modica created a 7,000 pound bronze bull statue, “Charging Bull”, and surreptitiously placed it in front of the New York Stock Exchange. Di Modica calls the statute a symbol of prosperity and strength. in March 2017, Kristen Visbal’s “Fearless Girl”, a 4-foot statue of a pony-tailed, arms-on-hips young girl, was placed a few feet away where she bravely stares down “Charging Bull”. Di Modica claims that “Fearless Girl” corrupts his artistic message and wants the statue of the girl moved elsewhere.

Does “Fearless Girl” Result in a Derivative Work of “Charging Bull”?

One of the copyright owner’s exclusive rights is the right to prepare derivative works of the copyrighted work. A derivative work is a new work based on or originating from another preexisting work. You can think of a derivative work as a spin-off product or as an adaptation.

For example, the Harry Potter films are derivative works of J.K. Rowling’s novels. If you write new lyrics for the melody of a song or translate the song into another language, you have created a derivative work of the song. Examples of derivative works listed in the Copyright Act’s definition of the term include a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted (emphasis mine).

Does the placement of “Fearless Girl” recast, transform, or adapt the “Charging Bull” artwork. Or, alternatively, is the proximity of “Fearless Girl” to “Charging Bull” more akin to hanging two contrasting paintings next to each other in an art gallery or museum – which is an act that would not result in a derivative work.

Di Modica Might Have Moral Rights in His Artwork

Di Modica claims that the placement of “Fearless Girl” distorts his work. That complaint focuses on moral rights. Moral rights protect the artist’s reputation, honor, and integrity. In the United States, such a complaint often falls flat.  Unlike many European countries where artists have strong moral rights protections, the United States does not generally offer moral rights in creative works.  The Visual Artists Rights Act (VARA) offers a limited exception to this general rule. VARA, which became effective in 1991 and is incorporated into the Copyright Act,  offers some moral rights protections to a very small category of visual artwork.

Sculptures are one of the categories of VARA-protected works so, if “Charging Bull” qualifies for inclusion in that category, Di Modica might have some actionable VARA claims. Under VARA, an artist has the following moral rights:

• the right to claim authorship of the work

• the right to prevent use of his or her name on a work the artist did not create

• the right to prevent use of his or her name on mutilated or distorted versions of the work

• the right to prevent mutilation or distortion of the work

Those last two seem most relevant for Di Modica. Hence, the VARA-related question is whether the placement of “Fearless Girl” in any way mutilates or distorts “Charging Bull”. A very subjective question indeed.

Public comments to the newspaper coverage on the issue are divided. There are those who sympathize with Di Modica and believe “Fearless Girl” radically alters the artistic statement he intends with “Charging Bull”. Then there are those commenters who think Di Modica is being ridiculous and just “needs to get over himself”. So lots of variety for a potential jury pool if Di Modica decides to pursue litigation.

What Are New York’s Rights in “Charging Bull”?

An artist can assign or transfer his exclusive right to create a derivative work. An artist can also waive his moral rights via contract. That begs the question of what rights and permissions New York holds in “Charging Bull”.

The answer is unclear. Evidently, Di Modica initially donated “Charging Bull” by installing it on Wall Street without a permit and without any authorization. City officials first removed the artwork but then relented to public pressure and put it back. Those circumstances suggest that there is no written agreement between Di Modica and the City of New York regarding “Charging Bull”. New York might argue that it holds a valid license to take certain actions regarding the work – even if some of those licenses might be implied rather than written.

(Image Credit: Christopher Penler / Shutterstock.com)

Copyright Implications of Protecting Tattoos. Questions Raised by NBA 2K Video Game Lawsuit.

NBA 2K is a video game series developed and released annually since 1999. Each game features animated, realistic versions of National Basketball Association (NBA) players. The 2014 and 2015 NBA 2K renditions include depictions of NBA players LeBron James, Kobe Bryant, Eric Bledsoe, DeAndre Jordan, and Kenyon Martin. Each of these five NBA players has one or more tattoos and the players’ NBA 2K depictions include their tattoos.

After obtaining rights from the tattoo artists who inked eight of the relevant tattoos, Solid Oak Sketches filed a copyright infringement action against 2K Games Inc. and Take-Two Interactive Software, the producers and distributors of the NBA 2K games. (In its amended complaint, Solid Oak dropped references to Bryant and Jordan and reduced the number of relevant tattoos to six.)

Initial Procedural Loss for Solid Oak

The court has already ruled that Solid Oak may not pursue statutory damages and attorneys’ fees in the lawsuit since the copyright registration applications for the eight tattoos were not timely filed. However, Solid Oak is continuing the lawsuit for actual damages.

Special Copyright Considerations for Tattoos

I have previously blogged about tattoos as protectable art. Already, the initial court filings of Solid Oak, 2K Games, and Take-Two Interactive raise many interesting questions about copyright protection for tattoos including the following:

When Is a Tattoo “Fixed”? Solid Oak filed the copyright registrations for the tattoos during summer 2015 – nine to seventeen years after the tattoos were applied to the NBA players. 2k Games and Take-Two allege that Solid Oak copied images of the NBA players from the internet for the deposit copy that must be submitted with the copyright application. If that is true, it suggests that the tattoo artists did not retain copies of their original tattoo designs (i.e., didn’t fix them anywhere other than on the players’ bodies).

As a result, the court might address – among other issues - whether a tattoo that exists only on an individual’s body qualifies as fixed in a tangible medium of expression as required for copyright protection. Some legal commentators argue it does not – while others insist it does.

What Is the Result of Collaboration between Tattoo Artist and Tattoo Recipient? Many tattoo recipients provide detailed instructions and even specific designs for creation of their tattoo. At what point does input from the tattoo recipient result in the tattoo recipient being a co-owner or even sole owner of the resulting tattoo? According to 2k Games and Take-Two’s description, each of the relevant tattoos was created with contributions and guidance from the NBA player. As an example, James provided a photo of his son for the child portrait tattoo inked on his arm.

What Is the Impact of Modifying the Tattoo? Body tattoos are designed to last a lifetime. But your desires for that tattoo might change as you live your life. What happens if your tattoo is later modified by a different tattoo artist? Who can then claim ownership of the tattoo? In the NBA 2K case, the arm tattoo of James’ son, originally applied in 2006, has been changed by different tattoo artists over the years to add more detail.

What Is the Appropriate License Fee for Incidental Use of a Tattoo? Here is how Solid Oak’s attorney calculated a proposed settlement fee according to correspondences attached to the complaint. To begin the calculation, Solid Oak used the $22,500 court award to tattoo artist Christopher Escobedo in a separate dispute involving a depiction of UFC champion Carlos Condit (wearing Escobedo’s lion tattoo on his rib cage) in the video game, UFC Undisputed.

• Dividing the $22,500 award by the 4.1 million copies of the UFC Undisputed game sold yielded a per unit award to Escobedo of 0.55 cents per unit. (Incidentally, Escobedo appealed the bankruptcy damage award and settled the claim outside of court for an undisclosed – but presumably higher - amount.)

• Multiplying 0.55 cents by the 8 tattoos used in the NBA 2K games yields a 4.4 cents license fee due for each applicable copy of the NBA 2K game sold

• Multiplying 4.4 cents per unit fee by the approximately 13 million units sold of NBA 2K14 and NBA 2K15 yields $572,000.

• Plus a front-cover premium. In its settlement correspondences, Solid Oak indicated that the NBA 2K14 cover features LeBron James with two of the relevant tattoos visible. Solid Oak asserted that the front cover tattoo depiction was worth a premium – calculated by tripling the 0.55 cents per tattoo per unit fee which yields a $1.65 premium per unit for each cover-featured tattoo.

• Multiplying $1.65 by the 7.5 million units sold of NBA 2K14 yields a $123,750 premium for each of the two tattoos depicted on the cover.

• Totaling $819,500 for the prior unauthorized reproductions, displays, and public disseminations of the eight tattoos

• Plus an optional $1,144,000 charge for Solid Oak’s offer of an ongoing perpetual license to continue using the eight tattoos for future NBA 2K editions.

Solid Oak’s Total Proposed Price Tag for Past and Ongoing Video Game Depictions of the 8 Tattoos: $1,963,500

What boggles my mind is the tattoo premium requested for LeBron James’ appearance on the cover. The request strikes me as a misguided assessment that treats James’ appearance on the cover as incidental to the tattoos’ appearance – rather than vice versa. In my mind, it’s James who attracts eyes to the cover; not his tattoos.

Solid Oak v. 2K Games might be the first tattoo copyright infringement lawsuit to be decided by a court on its merits – rather than by the parties’ out-of-court settlement. If so, it will be an interesting case to watch. (The case is Solid Oak Sketches v. 2K Games and Take-Two Interactive Software, No. 16CV724-LTS (S.D.N.Y., Filed Feb. 1, 2016)  

More Lessons on How Not to Use Stock Images. Improper Use of Stock Image in HIV Ad Results in Successful Lawsuits against Getty Images and Advertiser.

Stock images, stock footage, and stock music are fantastic resources when you need material for your website, advertisements, video productions, and other creative projects. Using stock materials can lower costs, legal risks, and administrative work – if used properly. Proper use is key as there are definitely incorrect and risky methods of using stock materials.

HIV Ad Results in Lawsuits against Getty Images and Advertiser

In April 2013, the New York State Division of Human Rights released an advertisement advocating rights for people who are HIV-positive. The ad featured a picture of Avril Nolan with the caption “I am positive (+),” and, “I have rights”. You can see the ad in the New York Post coverage.

However, Nolan is not HIV positive and did not consent to the use of her image in the ad. The New York State Division of Human Rights obtained Nolan’s picture from Getty Images, a well-known stock image company. Getty Images obtained the picture from photographer Jena Cumbo, described as an acquaintance of Nolan, who took the picture.

The incident resulted in Nolan filing lawsuits against both the New York State Division of Human Rights and Getty Images. I initially blogged about this incident in 2013. Since there has been some resolution to the legal proceedings, I thought it worth re-visiting the mistakes made by the New York State Division of Human Rights, by Getty Images, and by the photographer.

The New York State Division of Human Rights’ Mistakes:

Kudos to the New York State Division of Human Rights (NYSDHR) for licensing the image from a reputable stock image company rather than allowing its staff to meander the internet in search of images to cut and paste. (Some companies do that for their social media posting needs and it often does not work out well.)

NYSDHR Mistake One. Unfortunately, no one at NYSDHR read the Getty Images license agreement. The NYSDHR staff person who made the online purchase clicked through the license agreement while downloading the Nolan image but did not read the license agreement which contained the following provisions:

"2.6 Pornographic, defamatory, or otherwise unlawful use of [stock images] is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. (emphasis added)

2.7 “If any [stock image] featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person”, the stock image must be accompanied by a disclaimer indicating “that: (i) the [stock image] is being used for illustrative purposes only; and (ii) any person depicted in the [stock image] . . . , is a model."

NYSDHR Mistake Two. Several NYSDHR staff people reviewed and/or participated in preparation of the ad. Yet, none of them considered the implications of using the picture of a woman who’s not HIV positive as the focal point of an “I’m HIV-positive” advertisement.

The Outcome for NYSDHR. Those actions constituted negligence by NYSDHR. As a result of negligently labeling Nolan as HIV positive in its advertisement, NYSDHR was found liable for defamation and for violation of Nolan’s privacy rights in a summary judgment motion (Nolan v. New York, 2015 NY Slip Op 32023(U) (Court of Claims, Oct. 18, 2015). The Court of Claims left the issue of NYSDHR’s damages for a subsequent trial.

Getty Images’ Mistakes:

Getty Images’ Mistake One. During the purchase process, Getty incorrectly informed NYSDHR that Nolan had signed a model release and that the image was available for commercial use.

Getty Images’ Missed Opportunity. During the purchase process, Getty learned that NYSDHR would use Nolan’s image for advertising. However, Getty did not make any inquiries regarding the advertisement’s subject matter. Since not all purchasers are going to read Getty Image’s eight-page licensing agreement, the purchase process presents a good opportunity for Getty Images to highlight the additional steps required prior to using stock images in an ad about a sensitive subject.

The Outcome for Getty Images. Nolan sued Getty Images for using her image for trade or advertising purposes absent any written consent in violation of New York Civil Rights Law §§ 50 and 51 (the state’s privacy laws). Getty tried very hard to get Nolan’s complaint dismissed by pushing any liability onto NYSDHR and the photographer. Getty’s arguments included the following:

• Getty had a First Amendment right to display Nolan’s image in its database and license the image to the press;
• Neither NY Civil Rights Law nor the First Amendment required Getty to investigate the existence or validity of every image release within its database
• Nolan was a model and such status negated her privacy claim.

The court disagreed with Getty finding that Nolan had a valid claim against Getty for placing her image in the Getty catalogue, especially where that photograph is ultimately used in an advertisement in a manner that created a false impression about Nolan. According to the court there were many factors that needed to be resolved via summary judgment or trial:

• whether Nolan is a model,
• whether Nolan signed a written release,
• whether Civil Rights Law §§ 50 and 51 required Getty to investigate the existence of a release signed by Nolan,
• whether the First Amendment protects Getty's exploitation of Nolan's image without Nolan's written permission,
• whether Getty's inclusion of the image in its database of images available for licensing qualifies as use of the image for either advertising or trade purposes, and
• whether Getty can shift to NYSDHR and the photographer the burden of obtaining Nolan's written consent.

Getty decided not to pursue answers to those questions and settled with Nolan in January 2015.

The Photographer’s Mistakes:

Nolan posed for the photograph in May 2011 in connection with an article in Soma Magazine about New Yorkers interested in music. Nolan did not receive payment for the photograph, did not sign a written consent form, and did not grant permission for use of the photo for any purposes other than the Soma Magazine article. The photographer provided that image to Getty for inclusion in its stock image database.

According to Getty, as part of that transfer, the photographer signed Getty Image’s contributor agreement. I just took a look at Getty Images contributor agreement and it does require that those submitting images to Getty obtain valid model and property releases where necessary in accordance with the Submission Requirements. It took a lot of clicking through other areas of Getty Images website to determine when those Submission Requirements deem it necessary to obtain model and property releases.

Ms. Nolan did not sue the photographer. The photographer likely does not have the deepest pockets of the parties involved in this affair. She and Ms. Nolan might also be friends or at least social or professional acquaintances. While it appears that the photographer escaped unscathed, she likely did not strengthen her relationship with Getty Images and Getty Images might pursue her for reimbursement of any settlement feeds paid to Nolan. The Getty Images contribution agreement does include indemnification provisions.

Unauthorized Product Placement Questions Raised by Lego/Artist Conflict

Lego blocks – a child’s toy – has stirred up a political, censorship, and product placement controversy.

Artist Ai Weiwei’s Upcoming Work

For an upcoming exhibit at the National Gallery of Victoria in Melbourne, the Chinese artist and dissident Ai Weiwei decided to build two works using Lego construction blocks. One work tentatively titled “Lego Room” is to consist of mosaic portraits of advocates for human rights and Internet freedom including controversial figures such as WikiLeaks founder Julian Assange. The second work is to be a new version of the artist’s 1995 photo triptych, “Dropping a Han Dynasty Urn.”

This is not the first Ai Wiewei exhibit based on Lego blocks. In 2014, he did an exhibit at San Francisco’s Alcatraz prison which work including Lego-block-based portraits of 176 prisoners.

Reaction by the Lego Group

Danish toymaker, The Lego Group, refused to fill the bulk order of several million blocks needed for Ai Weiwei’s project. A Lego Group spokesman, quoted in the New York Times, explained that the company rejected the order because the company “. . . refrain[s] — on a global level — from actively engaging in or endorsing the use of Lego bricks in projects or contexts of a political agenda.”

Rights Clearance Issues?

Questions abound as to whether the Lego Group’s non-political stance was in fact political and as to whether refusing to fill the bulk purchase is censorship. For me, as an attorney whose practice includes licensing issues, the conflict also interests me from a rights clearance and product appearance perspective.

The questions of whether one can incorporate brand-named products arise frequently. Products with brand names have a way of popping up – sometimes unexpectedly – in artwork, film, productions, advertisements, and other media. While conservative media producers eschew the risks from the unlicensed appearances of brand-name products in their works, several United States court rulings sanction the unauthorized appearance of a brand-name product in a production as long as the appearance does not

1. tarnish the product’s reputation,

2. siphon the goodwill associated with the product, or

3. mislead people to believe that the product manufacturer has endorsed or sponsored the production.

Courts are particularly willing to accept an unauthorized product placement when used for social commentary. Perhaps no company has learned this lesson better than Mattel, the maker of the iconic Barbie Doll. According to the courts, all the following are legally acceptable:

• Utah photographer, Thomas Forsythe, taking and displaying photos of Barbie Doll in various absurd and often sexualized positions in his “Food Chain Barbie” photo series;

• Artist Susanne Pitt re-selling Barbie Dolls after physically altering them and clothing them in sadomasochistic attire

• Danish band Aqua featuring Barbie Doll in a sexually risqué song titled Barbie Girl

In contrast, featuring iconic products and their logos in non-related advertisements without a license can have dire consequences.

Back to the Lego Blocks

One commenter compared the Lego Group’s withholding of blocks to the withholding of paint, pens, or a camera because one doesn’t like the painting, book, or film that will be created from that material. If one considers the Lego Group’s mission statement, as shared on its website, “to inspire and develop the builders of tomorrow”, the comparison has some validity.

On the other hand, there are distinctions between those Lego blocks and paint, pens, or film -when being used as the basis for art. Typically, when we view a painting, book, or film, we don’t necessarily know the brand of paint, pen, or film used for the work. In contrast, each Lego construction block carries the trademark, Lego, so Lego is front and center for visual works constructed with the blocks.

Meanwhile, Ai Weiwei’s social media posts and subsequent news coverage about the conflict have generated numerous offers from around the world of contributions of the toy blocks. Hence, it appears that the artist will get the Lego blocks – as well as some “you just can’t buy that kind of” publicity – for his upcoming art project.

How Not to Use Stock Images. Lessons from Getty Image - HIV Ad Lawsuit.

Stock Images Are Great! – Usually

I often recommend to my clients that they use stock images and stock footage as a means to reduce the licensing headaches, legal risks, and costs associated with using someone else’s material. But there are definitely right ways and wrong ways to handle stock materials. This situation with Getty Image illustrates many of the wrong ways.

HIV Ad Results in Lawsuit against Getty Images

In April 2013, an ad featuring a picture of Avril Nolan and advocating rights for people who are HIV-positive appeared in a New York newspaper. The quarter-page color ad, with the words “I am positive (+),” and, “I have rights” printed next to Nolan’s picture, implied that Nolan is HIV positive. She is not. You can see the ad in the New York Post article.

The New York Division of Human Rights, which placed the ad, obtained Nolan’s picture from Getty Images. Getty Images obtained the picture from photographer Jena Cumbo, described as an acquaintance of Nolan, who took the picture.

Avril Nolan has filed a lawsuit against stock image company, Getty Images. The New York Post article suggests that a lawsuit against the New York Division of Human Rights may also be forthcoming.

Stock Image Mistakes Made by Photographer, Licensee, and Stock Image Company

Let's assume, just for the purpose of this blog posting. that all the facts alleged in Nolan’s complaint are true. That means all the parties in the distribution chain resulting in the appearance of Nolan’s image in this ad made mistakes:

The Photographer. Nolan claimed she never signed a release for the picture taken by Cumbo and Cumbo’s interview with the New York Post doesn’t contradict that assertion. When selling images of recognizable people to a stock image house, make sure you have a release.

New York Division of Human Rights. Even if Nolan did sign a release for her picture, the release she signed probably doesn’t cover use in this particular ad. Releases signed by people whose images wind up in stock image libraries often do not cover a use dealing with sensitive issues – such as the HIV virus and AIDS. Before using anyone’s image in this particular ad, the NY Division of Human Rights should have determined the existence of a release and then either obtained additional permissions from the person and/or used a disclaimer with the image.

Getty Images. The license granted by the stock house frequently includes only rights related to the copyright of the image and leaves the licensee on its own to clear any additional rights triggered by use of the image (e.g., privacy, publicity, defamation). Nevertheless, when licensing images of recognizable people for use in commercial advertisements, it’s definitely in the direct interest of the stock house to verify the existence of a personal release or to make sure the licensee understands the need to obtain those rights on its own.

Some Photo Law 101 Tips: Taking Photos in Public Places

Photographers have wide latitude to take photos in public. They can even use a device such as a zoom lens to photograph action within public view or photograph private property viewable from public property. One situation in which taking photos in public might become problematic is if the photographer uses aggression or harassment to get photos of celebrities. Such paparazzi behavior can lead to criminal and civil charges of assault and false imprisonment against the photographer.

When Do Photographers Need a Film Permit?

Setting up a professional, commercial photo shoot on public property may require a permit from the city or municipality. Each local jurisdiction has its own process for issuing permits so start your permit quest by contacting the city or municipality’s film office. One potential stumbling block for some photographers to getting the permit is the requirement to have insurance.

How Can a Professional Photographer Use Photos of People?

The permissibility of publishing photos of other people depends on whose photo you have and how you want to use the photo. Here are some very general guidelines.

• Taking and then publishing your photo of a person when the photo is directly related to a report on a newsworthy item is usually permissible. Publication does not violate the person’s privacy or publicity rights.

• You need the person’s consent prior to publishing the person’s photo in a commercial or advertising context. Otherwise, you violate that person’s publicity rights.

• You cannot surreptitiously photograph a person when the person reasonably believes he has privacy. Such photographing is a violation of the person’s privacy rights.

• It is never a bad idea to have a signed release from the person whose photo you want to publish.

Do I Need Permission to Use that Picture?

In addition to being worth a thousand words, a picture can spawn numerous permissions issues. The use of a photo may trigger privacy, publicity, defamation, trademark and other issues – depending upon who appears in the image and how you intend to use it.

Multiple Permissions May Be Required

You may need to obtain permission from more than one person or organization before you can use a particular picture. For example, in addition to getting permission from the photographer who took a photo, you may also need permission from any people depicted in the photo; from the owner of any trademark appearing in the photo; and from the copyright owner of any painting, sculpture, or other artwork depicted in the photo.

Stock Images as an Easier Alternative

An easier option for photo permissions may be licensing stock images. Licensing stock images is becoming easier as more stock houses computerize the process, offer online catalogs, and issue licenses online. A downside to using stock images is that they may have been in many other projects and may have been seen many times before. Stock materials can generate other unexpected consequences. Consider the rather negative experience of Hillary Clinton during the 2008 presidential primary campaign when she used stock footage – a close cousin to stock images – in one of her political ads. Also, using stock images does not always negate the need to obtain additional permissions for people or objects depicted in the image.

The Permission Seeker’s Guide Through the Legal Jungle includes an extensive discussion on using materials from stock houses and getting permissions for images.

Visual Artwork in Film and Television

On the Art Licensing Blog, artist Paul Brent tells the story of how his artwork made an appearance on this week’s episode of Hawaii Five-O.

In his interview with Tara Reed, Paul wonders whether video production companies must ask artists permission for the use of their artwork. The answer is yes! The Copyright Act protects visual artwork just as it protects songs, films, books, and other creative materials.

Production companies that use artwork in a production without the artist’s permission can certainly be sued for copyright infringement (if the use does not qualify as a fair use). One of the best known cases is contemporary artist Faith Ringgold who sued after a poster of her Church Picnic Story Quilt appeared as part of the set decoration in an episode of the sitcom Roc. Even though the poster appeared for a total of less than thirty seconds, the court said it wasn’t a fair use. The parties ultimately settled without a trial.

Graffiti As Protectable Art

I recently addressed the question of whether graffiti is protected by copyright. The question revolved around one’s right to incorporate someone else’s graffiti into another visual artwork.

Here’s my opinion on the matter:

Copyright protection is available for “any original work of authorship that is fixed in any tangible medium of expression”. That language comes directly from the Copyright Act and means that creative works – like books, films, art, etc. – are protected by copyright as soon as they are written down, typed into a computer, recorded on film, drawn on a napkin - or even a wall, etc.

Graffiti has special features:

Often, the venues on which the graffiti artists draw do not belong to them. The artists do not have permission from the property owners and, in fact, their “creative work” may be viewed as vandalism. Finally, graffiti is often promptly removed. Nevertheless, I am not aware of any legal cases or other authority suggesting that copyright is unavailable or diminished for any of these reasons.

However, I’ve never researched this specific issue and there may be a relevant case out there. In any case, I would start with the theory that the graffiti is subject to copyright protection – until I found specific legal support to indicate otherwise.

Is the Graffiti Original?

One concern I would address before re-using any graffiti on another work is whether the graffiti is actually the original work of the graffiti artist. If the graffiti artist copied the design from a magazine, postcard, etc., the original creator of the design might be someone who will challenge its use on your work. I would also look at whether the graffiti includes any images of recognizable people or products – which could trigger privacy, publicity, or trademark issues.