I’ve been meaning to write this article for a long time now, because, lets face it, the problem has just been getting worse and worse. Almost every week, someone tells me of an incident, and it goes something like this …
“I went down to The Market the other day, and there was someone down there selling cards with some of your/another artists artwork on it!”
There are websites, there are ebay sellers, there are people at markets, and all of them are selling cards and other reproductions of peoples artworks. when confronted, they always have several excuses that they always have on hand:
“It was done illegally, therefore I’m allowed to reproduce it!”
“Its street art, its allowed and its free for all – its not copyright, if it was then why would they be painting it on the street!”
“Its artistic licence and my own photographic art, therefore I can sell it if I want to.”
All of these statements are grossly incorrect.
Before I go on with this article, I am going to state that I am not a legal representative, or lawyer, and have no qualifications in such matters. Although I have sought advice from several legal sources as to the following, and researched the matter, this is a matter of my interpretation and it is to be taken in no way as official legal advice – it’s up to you to take this knowledge, and arm yourselves with as much information as possible.
Now all that disclaimer aside, I will give you the information that I have both gathered, and consulted with legal sources, and I’m going to tell you artists what you already know is quite obvious – all of these excuses, under Australian law, are, for the most part, complete bullshit.
There are several reasons for this, and two very important rights that artists have that invalidate anyone who attempts to reproduce an artists work without their permission – Copyright and moral Rights – and I’ll address these separately.
This is a hefty article and I’ve been working on it for a while to make it as comprehensive as possible, so bear with it.
Australian Copyright Law and the Protection of Street Art & Graffiti
The Arts Law website states this, in reference to the Australian Copyright Act 1968:
“Sculptures, monuments and artwork may be protected by copyright. Unless an exception applies, you need permission from the copyright owner of the work. Exceptions to this general rule are found in the Copyright Act. For example, photographing and publishing a photograph of a sculpture or work of artistic craftsmanship that is permanently situated in a public place, or in premises open to the public, does not infringe copyright (s.65). This does not apply to other public art, such as murals. - 
Murals, which by definition include street art, are not included in this exemption, and are most definitely protected under the Australian Copyright Law – they are not exempted like other public artworks.
The Australian Copyright Council gave us this advice:
“It will be an infringement of copyright in an artistic work to reproduce a “substantial part” without the permission of the copyright owner and if an exception does not apply. Courts determine whether a part is a “substantial part” by looking at whether it is an important, distinctive or essential part. The part does not necessarily have to be a large part to be “substantial” for the purposes of copyright law.
There are “fair dealing” exceptions in the Copyright Act for the purposes of research or study or criticism or review that may allow reproduction in certain circumstances. However, it is highly likely that a photograph that reproduces the entirety of a work of graffiti street art would infringe copyright in the artistic work.”
The Arts Law website further clarifies this:
“Although murals and graffiti are generally situated in a public place, because they are two-dimensional artworks the section 65 exemption does not apply. As such, if you substantially reproduce a mural or graffiti work in a photograph you may be infringing the copyright in that mural or graffiti work. Substantial reproduction is not a question of how much has been reproduced like 10% of 70%, but rather a question of quality (i.e. what has been reproduced).” 
This means a photograph looking down a street that happens to have a mural wall running down one side adding perspective is less likely to infringe copyright than a photograph that focuses on a key part of the mural making it the main subject of the photograph, even though the first photograph shows more of the mural.
“Less likely” does not mean that it doesn’t, and as the ACC states above, if the entirety of the mural is reproduced, then it is almost certainly infringing on the artists copyright, regardless of “artistic expression” on behalf of the photographer.
This means that the reproducer cannot use this argument as a reason to be able to sell their reproductions of street art on cards/prints/other items, because there is an almost certain chance that their reproduction actually infringes on the artists copyright and can be dealt with by law – and in these situations, it is usual that the reproducer must cease and desist in selling the item until such time as the issue is resolved.
The ACC gives this advice for putting all of this into practice:
“In practice, it may be difficult to seek permission from graffiti and street artists because of the nature of their medium – anonymity is important. While many artists are comfortable with the public photographing their work for private, non-commercial purposes, they may not be as comfortable with commercial use of their work. However, you may find that because of the nature of graffiti and street art (it is a very public artistic practice), these artists, if you can locate them, may be willing to licence their work for commercial purposes. For further information on licensing copyright material, see our information sheet ‘Assigning and Licensing Rights’ and ‘Fees and Royalties for use of Copyright Material’.
You can download a copy of each of these from the following address:
The end result of this – you cannot (and really should not) reproduce an artists work from the streets, without their consent. You cannot take a photo of their work, and sell it for your own profit. If you have an image that contains an artists work, you may be infringing copyright, and you cannot sell this until you have ascertained that the image in the photo you are reproducing is not actually breaking the artists copyright.
All artists retain complete copyright control over any work they produce on the streets, legally, OR illegally and no one has any right to reproduce it any any way for their own profit – end of story.
It Was Painted Illegally, Therefore The Artist Has No Copyright Or Moral Rights On The Art And I Can Do What I Want With It.
“People think that because our work is public and it is sometimes illegally painted, they could [sic] use it any way they want.” - Cantwo. 
Copyright of an image is not negated if it was produced illegally. Of course, if it was produced illegally, then the artist themselves may face other legal issues such as vandalism charges, tresspass, etc, however the piece itself is still protected under copyright law as a mural and is still the property of the artist.
The ACC offered this advice:
“It is assumed that references to “illegality” in the creation of a work of graffiti or street art refers to laws relating to vandalism or private property, rather than copyright. That is, the work is not copied from another image, but the physical location of the work may make it “illegal” under other laws.
As long as the criteria for protection are met, works of graffiti and street art will be protected as “artistic works” for the purposes of the Copyright Act 1968 (Cth). A general rule of copyright law is it protects original forms of expression in material form. “Material form” has a broad meaning and while artistic works are generally thought of existing on paper or canvas, they can also exist as murals, stencils or other sophisticated works of graffiti and street art. However, very simple tags, stencils of words or phrases are highly likely not to be sufficient for copyright protection.
Under the Copyright Act, the person who first reduces the work to material form is the first copyright owner. In this scenario, the graffiti or street artist who creates a work that is protected by copyright will be the first owner of copyright in that work.Copyright is personal property and may be transferred by assignment – that is, the artist may transfer ownership of their copyright to someone else, but unless this occurs, reproduction is not permitted.”
Naomi Messenger, a lawyer from KPMG Legal writes in her 2002 article “Can ‘Can Art” Navigate Legal Pitfalls 
“Spray-can artists usually come prepared. They have preliminary sketches of their proposed paintings. They will generally have copyright in both their sketches as original artistic works, and the graffiti art copyright gives them the exclusive right to reproduce their artworks and to adapt them from two-dimensional to three-dimensional artworks.”
She then goes on to say how a pseudonym would affect this:
“The term of copyright protection may differ if the artist is working under a pseudonym, that is their individual identification ‘tag’.
Anonymous and pseudonym works are only protected for 50 years from first publication; although if the identity of the author is known or can be ascertained, the duration will be the life of the artist plus 50 years.” – therefore the only thing that would affect the actual copyright of the artists work would be the 50 year limit, however the artist still retains copyright over it for that duration.
There is another part to this – in a large number of cases, where someone has taken a photo of a piece of graffiti or street art and used it for their own gain, the piece was actually a legally painted commissioned piece.
Sharon Givoni, a Melbourne based intellectual property law clarifies this further (in a great, must read article for all artists that was published in Illustrators Australia):
“It is important to note that if you paint on someone else’s wall you will not own the physical painting on that wall as this remains with the property owner.However, the owner of the building will not necessarily own the copyright of the painting on the wall as that often remains with the artist.” 
This means that the artist holds copyright over it – unless, of course, they were actually employed. If the artist was employed to produce the artwork, their copyright over the images may be owned by the employer – this copyright has to be given away in writing, however, specifically via a contract.
The people reproducing this artwork have not been granted copyright, therefore they have no right to print or reproduce it for their own profit. Pieces also, painted in legally sanctioned areas, such as Hosier Lane in Melbourne etc, are also protected under copyright, which is retained by the artist.
Yet regardless of either of these variations, whether the artist produced the piece legally, or illegally, any mural created by an artist is protected by copyright – even if it was produced in an illegally on a wall.
Copyright law aside, this isn’t the only recourse that street and graffiti artists have in protecting their work. There is also the little thought abut “Moral Rights” that an artist retains on their artwork. This law is just as important as copyright law, because the people who actually sell these cards break pretty much all the time.
Moral rights over your artwork, as classified as a mural, means that no one can actually take your artwork and display it in any way, or reproduce it in any way, without actually attributing you as the artist.
Moral rights do apply in a separate way to copyright, as you can never actually sell your moral rights, they stay with the artist. Although moral rights can be waived, you as the artist and creator of the mural always retain the moral right to be named as the creator.
In terms of the law itself, breaching the artists moral rights is in this instance defined by the Copyright act, and your moral rights consist of the following:
“If an artistic work has been subjected to derogatory treatment of a kind mentioned in paragraph (a) of the definition of derogatory treatment in section 195AK that infringes the author’s right of integrity of authorship in respect of the work, a person infringes the author’s right of integrity of authorship in respect of the work if the person does any of the following in respect of the work as so derogatorily treated:
(a) reproduces it in a material form;
(b) publishes it;
(c) communicates it to the public.” 
The Australian Copyright Council has a fair bit to say on this matter, as outlined in their response to my queries below:
“Artists have moral rights in their work. We will deal with these three rights in turn. There is a general defence of consent for all three rights. There is a defence of reasonableness for the rights of attribution and integrity.
These rights are:
- the right of attribution
- the right against false attribution
- the right of integrity.
Creators of copyright material have the right to be attributed when the work used for various purposes. If a creator has not stated the way in which he or she wishes to be identified, any “clear and reasonably prominent” form of identification may be used.
This means that someone receiving, seeing or hearing the work or adaptation would be aware of the creator’s name.
There may be a practical problems in attributing graffiti or street artists that chose to remain anonymous, or make their work available under pseudonyms.
Creators of artistic works have the right not to have the authorship of their works falsely attributed.
False attribution means:
- crediting the wrong person as the creator of the work; or
- crediting the creator of a work that has been altered without acknowledging the alterations.
- It is also an infringement of this right to knowingly deal with or communicate a falsely attributed work.
The right of integrity is the creator’s right not to have his or her work subjected to “derogatory treatment”. “Derogatory treatment” means doing anything in relation to the work which prejudices the creator’s honour or reputation.
This could include:
- distorting, mutilating or materially altering the work in a way that prejudices the creator’s honour or reputation; and
- in the case of artistic works, destroying the work or exhibiting it in public in a way that prejudices the creator’s honour or reputation.
Defences – Consent and Reasonableness
A creator may consent to their moral rights being infringed. However, it may be difficult to obtain consent from street and graffiti artists for the reasons discussed above under the heading “In practice”.
A failure to attribute the creator, or a derogatory treatment of copyright work, does not infringe the creator’s rights if the action was “reasonable” in the circumstances. The Act sets out a number of factors to be taken into account in working out whether the action was reasonable.
- the nature of the work;
- the purpose, manner and context for which it is used;
- relevant industry practice;
- whether the work was created in the course of employment or under a contract of service; and
- if there are two or more authors, their views about the failure to attribute or derogatory treatment.
It is highly likely to be reasonable not to attribute anonymous graffiti and street artists. Where the street or graffiti artist is known or works under a pseudonym, it is less likely to be reasonable as there is a growing industry practice in art world to attribute graffiti and street artists. Moreover, the work of graffiti and street artists is gaining credibility and a viable economic market in the art world.
To avoid any risk in infringing the moral rights of a graffiti or street artist, attribute them with their pseudonym, but ensure you do not falsely attribute an artist.”
Interpreting the advice by the ACC above, it also means that your artwork can never be used in a way that will affect your integrity. If use of your artwork this inflicts on your moral rights, say an artwork is done and put in an exhibition then the public might take it incorrectly. Also, if an artwork is reproduced for someone elses gain, morally you have the right to deny its use if you do not agree with said use – this means that if someone is reproducing your work, even if in part on a card or somewhat, even if its “not even in context” you retain the moral right to refuse its use! In some ways,t his can even rump copyright – if your work is on one of these cards, and you morally object to its use, it is not allowed to be used!
Not only are these people infringing copyright, but they are reproducing it, and not attributing the artists. This infringes upon the moral rights, not only that, but to me, if someone is reproducing my work for personal gain, then that to be is treating my work in a derogatory manner – ie “I don’t want to support the mass production of street art for someones personal gain, and I am offended by it and find the use of my work in this contest derogatory.”
So in this case, I believe that even if the photo of your work is taken, and it is “incidental” to the actual photograph or image itself, Moral Rights still apply. The artwork has been reproduced, and therefore the artist has to be named, and has to be informed as to its use. If the artists is not named in the reproduction, even if the piece of artwork is very small and incidental to the overall composition of the piece, the artists moral Rights have been breached if the person responsible for the image has not named the artist or obtained a waiver from the artist to utilise it in a public display. A public display could also mean, displaying it at a market, for sale.
Someone selling your work can also be met with objection by way of misleading or deceptive conduct. If you as an artist are well known enough, then it may be misleading as he people selling your work may be seen by others to be “representing” you, when in fact no such relationship actually exists between yourself and the seller.
Copyright, Moral Rights and Your Right To Consent And Notification At Having Your Work Destroyed, Mutilated Or Altered
Oh, just as a little bonus, and I’m just going to throw something in here that the artists don’t actually realise that also applies with moral rights – you ready for this?. If you produce a mural, and the work is slated to be destroyed or changed of buffed over, did you know that this also violates your moral rights? Did you know that the artist MUST be informed that the artwork is going to be destroyed, mutilated or altered, or if it is going to be used for any reason that may be and prejudicial and reputation. If the artwork cant be moved, then the person doing the renovation or changes of building MUST seek out the artist and inform them, and consult with them, before doing anything to the artwork.
“Under Australian law it is not an infringement of moral rights to change, relocate or demolish a building of which an artistic work forms part, provided that the property owner:
- gives the artist notice; and
- allows the artist to access the building to make a record of the work and consult with the owner about the change, relocation or destruction.” 
Interesting huh? This is also actually the law that 5pointz was actually trying to utilise, and which is why there are now legal queries as to whether the building owner was able to legally buff his property.
But, anyways, I digress from the main point of this article, and that is the protection of your work from the people who seem to think that it is legal to reproduce them.
Lastly, I’m going to state, once again, that I am not a lawyer and I am not qualified to offer legal advice. This article is for the purposes of steering you in the right direction, and to also point out to people who are illegally selling reproductions of artists work that they are indeed, more than certainly, breaking the law by selling their cards/prints whatever.
To get real advice, there are many resource that you can use – the best is the Australian Copyright Council, and, to a lesser extend, ArtsLaw Australia (who I did receive a limited amount of advice from before they wanted me to subscribe to their service).
They do have a good website and they do have several templates for sending to people who are breaching your rights, Copy or Moral – they are:
You can find these here:
Also, read the copyright laws - http://www.comlaw.gov.au/Details/C2010C00476/Html/Text#param686
The Australian Copyright Council are also damn fine at providing information, contact them and they will give you some great feedback (thanks ACC!)
In summary, if you come across one of these people who are reproducing artwork, send them a cease and desist notice. Send them here, to this article, and get them to read it to understand exactly how they are breaking the law. Sometimes, they genuinely don’t realise that they are breaking the law by doing so – because they do seem to think hat taking photos of street art and selling their own photos of it is actually legally.
Contact the Copyright Council, ArtsLaw or someone else suitably qualified, but you don’t have to do that in order to send them a letter asking them to stop – it is legal and within your rights to do so, and you probably have a great legal case against them. Oh, and send them to this page – people really need to be educated about these matters, and these myths need to be dispelled.
At the end of the day, if they keep selling your work – take them to court, the chances of you winning the case are very high. Don’t think to yourself “I can’t afford to take them to court” – there are plenty of lawyers out there that will help you out, and as your chances of winning are high, well, then you probably wont pay any fees at all in the end.
If you are one of those people who reproduce other peoples street reading this now. If someone has pointed you here to read this article and you are one of the people selling these cards or prints or whatever at markets, or on eBay – what you are doing is NOT legal.
You are almost certainly breaking copyright laws, murals are assuredly protected, but, most importantly, you are also breaching the artists moral rights and it is quite likely that you are breaking the law.
This article is an interpretation of research on Australian Copyright and Moral Rights issues. carried out in April 2014. As this article is intended as a informative article only, and is only an interpretation of the laws governing street art and copyright/morals rights, Invurt cannot be held liable for any errors , inaccuracies or omissions to the article above. If you do notice any inaccuracies or errors, and are a legal professional and have issue with any information in this article, please contact us.
Note: As was pointed out to me in the comments, there are laws governing Fair Use that are also a deciding factor in terms of copyright of graffiti and street art. I’ll be researching these and looking into them – I’ll do some minor updates to this article to reflect them, but may save the bulk of it for another article as its a pretty fundamental issue – for example, would we even have so many street art books, magazines and documentaries if it was strictly enforced in those mediums? Personally, I see a big difference between a self published book on street art showcasing others works in support of the artists, where the author almost never makes his money back on it and its a labour of love, to one produced by a massive publishing house, or someone selling prints and crap on eBay for their own personal gain … but that debate is out of scope at the moment, and we’ll address it further at a later point.
 Street Photographers Info Sheet - http://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/#sthash.wPrb4xau.dpuf
 Snapping In The Streets - http://www.artslaw.com.au/articles/entry/snapping-in-the-street/#sthash.QmTdMNMF.dpuf
 Maine Law Review - Art Crimes - http://www.mainelawreview.com/wp-content/uploads/2013/01/8-Davies.pdf
 Can Art Navigate Legal Pitfalls - http://www.artslaw.com.au/articles/entry/can-can-art-navigate-legal-pitfalls/
 Sharon Givoni – Street Art: Another Brick In The Copyright Wall (Illustrators Australia) - http://www.sharongivoni.com.au/articles/2013-StreetArtCopyrightWall.pdf
 Copyright Act 1968 - http://www.comlaw.gov.au/Details/C2010C00476/Html/Text#param686
 Graffiti Artists Argue Building Destruction Is Contrary To moral Rights - http://www.artslaw.com.au/articles/entry/graffiti-artists-argue-building-destruction-is-contrary-to-moral-rights/