I’ve been meaning to write this about street artists, and graffiti artists, Copyright and Moral Rights in Australia 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’s a guy on Etsy / eBay who is selling my work and they have never asked me permission!”

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 on the information presented here on copyright and moral rights in Australia for street art and graffiti – it’s up to you to take this knowledge, and arm yourselves with as much information as possible to actively pursue your concerns.

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.

Image by Deb – Artwork illegally reproduced on eBay

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. – [1]

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.

When talking about infringements, the existence of such infringements occur when a substantial part of the artwork is reproduced without the consent of permission of the copyright owner.

The Arts Law website 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).”  [2]

Usually, this “substantial part” of the work will be determined by a court, who look for significant, distinctive and fundamental parts of the work in question – these fundamental elements do not have to actually comprise a considerable amount of the image for them to actually be determined a substantial part of it. Which means that 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.

There are, however, some exceptions within the Australian copyright act in regards to “Fair Dealing” – but these are quite narrow definitions usually related to academic requirements, and are not usually applicable in this case.

Fair Dealing

Fair Dealings are exceptions to the general copyright laws, and are often quoted by these “re-sellers” as a way of justifying their reproduction of  artists work. These do apply to many, however in the case of the market sellers, Fair Dealing just doesn’t apply.

The laws for “Fair Dealing” in Australia are not like the more robust Fair Use rights in the USA. This is much to the consternation of many proponents of an updated Australia Copyright law, who believe that our current Copyright system, and that especially of the Fair Dealing section, is out of step with the swift advances in technology that we find ourselves facing today.Fair Dealing in Australia comprises a multitude of various different exceptions, and Wikipedia has a good overview of the items in regards to them:

“In Australia the grounds for fair dealing are:

• Research and study (section 40 Copyright Act 1968 (Cth)
• Review and criticism (s41)
• Reporting the news” (s42)
• Legal advice (although the federal Crown is deemed to own copyright in federal statutes, and the Crown in each State in state statutes). (s43)
• Parody and Satire (with some exceptions) (s41A)” [3]

Regarding the re-use of copyrighted images or drawings, the Australian Copyright Act does not impose a 10%-limit under its fair dealing provisions for the purpose of research and study. Instead, each and every such use for research or study must be evaluated individually to determine whether it is fair, similar to the notion of fair use in U.S. copyright law. Among the criteria used to determine the fairness of a use are the purpose and character of the dealing, the nature of the work, the possibility of obtaining the work commercially within a reasonable time, the effect of the use on the potential market for the work or on its value, and how much of a work is copied.”

This is, all, actual, fairly good for artists, but its not so good for anyone else who may have a legitimate reason to re-publish the artists works. A review was recently conducted (February 2014) that proposed 30 changes to the Australian Copyright laws, under which Fair Dealing gets a good amount of consideration, however for the most part, it deals mainly with electronic reproduction of movies etc.

In this report, a number of issues were found in which the existing Fair Dealings laws were vastly problematic. [4]

In my opinion, Fair Dealing in Australia is currently in a state of flux – but this really has little bearing on the guys down at the market selling prints and such for their own personal gain.  It’s pretty hard for them to claim that they are selling these items for academic purposes, or as satire, or that they are research or reviews. Thus, for those people, Fair Dealing is no excuse.In terms of people publishing books, those operating websites and blogs, and reproducing via other mediums is still really murky. Blogs are usually promotive, and are a mainstay of this new world of viral art .

The Copyright laws on Fair Dealing are very much out of touch with this new age. Books and zines are even more difficult,many could be seen as academic publications, or magazines for review. Personally, when it comes to books on street art and graffiti, I look at it in a way that reflects my own personal morality – I draw a distinction between “Major Publishers” and “Self publishers” – major publishers are publishing books of one main purpose, to make money. Self Publishers are publishing out of a love of the art, and usually only do so to promote the artists works – in most cases they will hardly ever make any money off of them, and indeed will usually not even make their money back from printing up their books. Usually, they do get the artists permission, where they can and genuinely do contribute back to the scene.

Whether this distinction in my mind is legally correct or not, well, I guess each one would have to be taken on a case by case basis and judged on the facts as to its own merit.

If you are curious, you can see a list of exceptions to Copyright here – https://www.nla.gov.au/key-exceptions-in-the-copyright-act. [5]

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. [6]

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, trespass, etc, however the piece itself is still protected under copyright law as a mural and is still the property of the artist.

When people talk about a work of graffiti or street art being created “illegally”, they are usually referencing the act of creation, rather than any type of copyright issues. This means that the piece was created by means of trespassing or vandalism on someones private property, and not usually as a result of any kind of copyright violation. In this regards, the work of art is actually created by the artist, and isn’t just a replication of someone else’s work. So when someone says “It was created illegally” is just doesn’t matter, and the work itself is still copyright by the artist (unless, that is, if the street artist was say pasting up images of mickey mouse everywhere – then its not the property of the actual artist, but Disney, who is the copyright holder).

Street Art and graffiti are, therefore, protected under the Copyright Act – the copyright act specifies that “a work must be an original literary, dramatic, musical, or artistic work” (Copyright Act 1968 (Cth) s 32.) as long as it is expressed in “Material Form” – meaning “The subject-matter must be expressed in a material form: Copyright does not protect information, ideas, concepts, styles and methods. [7]

Street art and graffiti, where they exist as Aerosol murals, stencils, pasteups, paintings, drawings – these are all “Material Form” items. That also means that ideas, concepts, styles and methods can not be copyright. For some graffiti artists, their tags are more than an extension of their art, they are the art – if it was a simple tag, something like “Jules” in plain lettering, this probably wouldn’t be copyright – but if it was say, a tag such as one of Slicers, or Mayo, or Chaz Bojorquez, then it is most definitely a material piece of art and is definitely protected by copyright.

The Copyright Act, as summarised by the Law Handbook website, defines the “First Owner” of a piece of artwork as the author or artist who first produced the material form of the art. [8] Therefore, graffiti and street art are the “First owners” of the artwork – they can indeed transfer this copyright, if they should wish, but as any items owned by the artist as copyrighted materials are considered by Australian law as personal property, then no one, even if it was produced as a result of vandalism, has the right to reproduce the work without an artists permission.

Naomi Messenger, a lawyer from KPMG Legal writes in her 2002 article “Can ‘Can Art” Navigate Legal Pitfalls [9]

“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.” [10]

This means that the artist holds copyright over it – unless, of course, they were actually employed. If you are employed by a company and produce the work for them, then its implied that they own the copyright, unless you specifically signed an agreement otherwise. For artists, however, you are generally working as an independent contractor, in which case, even if you have been paid for producing the artwork, the person who bought the artwork does not own the copyright unless it was specifically stated that copyright would be handed over in the contract.

“The fact that a person has paid for the making of a work (other than a photograph, portrait or engraving) does not mean that they will own copyright in it, although they may be permitted to copy it, or exercise other rights of the owner. For example, if a community group commissions an artist to prepare some artwork for a pamphlet, the artist will own copyright in the artwork, although the community group will have an implied licence to reproduce it in the pamphlet (see “Licensing copyright”, below). This means the artist could allow someone else to use the artwork for another purpose.” [11]

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 illegal manner on a wall that the artist did not have permission to paint upon.

Moral Rights

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, which were introduced in 2000 as an amendment to the Copyright Act. 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) transmits it”

Furthermore, according to the Copyright Agency, moral rights consist of the following items:

“the right of attribution of authorship;

• the right not to have authorship of their work falsely attributed; and
• the right of integrity of authorship. This protects creators from their work being used in a derogatory way that may negatively impact on their character or reputation.

Moral rights last for the same time as copyright in a work, the term of which is usually the creator’s life plus 70 year.s” – [ 13]

Furthermore, the Copyright Agency then breaks this down into the application of Moral Rights as well as possible ways in which to infringe upon an artists moral rights:

“Moral rights apply to a wide range of works including:

• artistic works – including drawings, paintings, sculptures, graphs;
• musical works;
• dramatic works – including plays, film scripts;
• written material – including novels, textbooks, poems, songs, journal articles;
• computer programs; and
• films.”

Artistic works in this context also incorporate both street art and graffiti murals. These morals rights of authorship, attribution, integrity are defined in full in this information sheet provided by the Australian Copyright Council, where they also point out on Page 6 of their information sheet [14], that there are some exceptions to this rule in way of “reasonableness”, these are as follows:
“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.

These include:

• 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.”

There are some issues here – for example, many graffiti artists undertake their work anonymously, it may be reasonable not to attribute them. However even if their real name is not known, they should always be attributed by their pseudonym. Graffiti and Street Art are, these days, turning into real commercial products in many ways, and it is common industry practice for artists pseudonyms to be attributed alongside their work. So, really, there are no excuse to not do s, as pseudonymns for artists are quite easy to discover, due to the often unique nature of their work.

Yet how are your Morals Rights infringed upon? Again, the Copyright Agency breaks this down:

“There are numerous ways in which morals rights can be infringed upon, they include

• not attributing a work to its rightful creator or falsely attributing the work to someone else;
• reproducing a falsely attributed work;
• treating a work in a derogatory fashion. This can include distorting, mutilating or materially altering the work; and
• dealing commercially with or importing a work that had been treated in a derogatory fashion.”

Morals Rights means that your artwork must always be attributed – someone must name you as the artists on the work, they cannot attribute it to someone else, or themselves and they are also not allowed to be derogatory towards it.

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! This is a powerful right, 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.

Moral Rights are just as important as Copyright, and you should be aware of this when you see someone reproducing your work, and take steps to ensure that the reproducer has knowledge of this infringement alongside their copyright infringement.

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.”  [15]

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.

In Conclusion

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.

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 more than likely will be infringing on an artists copyright and moral rights, and you cannot sell it until you have ascertained that the image in the photo you are reproducing is not actually breaking the artists rights.

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.

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:

Copyright Breach – https://www.artslaw.com.au/info-sheets/info-sheet/copyright-infringement-and-letter-of-demand/

Moral Rights breach – https://www.artslaw.com.au/info-sheets/info-sheet/moral-rights-infringement-and-letter-of-demand/

Also, read the copyright laws – https://www.comlaw.gov.au/Details/C2010C00476/Html/Text#param686

The Australian Copyright Council are also good at providing information, contact them and they will give you some great feedback

If you come across one of these people who are reproducing your artwork, send them a cease and desist notice for Copyright, and one for Morals Rights if they have not attributed you. 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.

References

[1] Street Photographers Info Sheet – https://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/#sthash.wPrb4xau.dpuf
[2] Snapping In The Streets – https://www.artslaw.com.au/articles/entry/snapping-in-the-street/#sthash.QmTdMNMF.dpuf
[3] Wikipedia – Fair Dealing in Australia – https://en.wikipedia.org/wiki/Fair_dealing#Australia
[4] AFR – Review Recommends Lifting Fair Use – https://www.afr.com/
[5 ] ALCR and Fair Dealing in Australia – https://www.alrc.gov.au/publications/7-fair-dealing/operation-fair-dealing-exceptions-digital-environment
[6] Maine Law Review – Art Crimes – https://www.mainelawreview.com/wp-content/uploads/2013/01/8-Davies.pdf
[7]  ArtsLaw Copyright Info Sheet –  https://www.artslaw.com.au/info-sheets/info-sheet/copyright/#sthash.zNPgtShg.dpuf
[8] Arts Law Handbook and First Ownership – https://www.lawhandbook.org.au/handbook/ch24s01s02.php#Ch1316Se261562
[9] Can Art Navigate Legal Pitfalls – https://www.artslaw.com.au/articles/entry/can-can-art-navigate-legal-pitfalls/
[10] Sharon Givoni – Street Art: Another Brick In The Copyright Wall (Illustrators Australia) – https://www.sharongivoni.com.au/articles/2013-StreetArtCopyrightWall.pdf
[11] Lawhandbook.org.au – https://www.lawhandbook.org.au/handbook/ch24s01s02.php#Ch1316Se261562
[12] Copyright Act 1968 – https://www.comlaw.gov.au/Details/C2010C00476/Html/Text#param686
[13] The Copyright Agency – Moral Rights – https://www.copyright.com.au/get-information/other-rights/moral-rights
[14] Australian Copyright Council – Information sheet –  https://www.copyright.org.au/admin/cms-acc1/_images/13034892065265ec98855d4.pdf
[15] Graffiti Artists Argue Building Destruction Is Contrary To Moral Rights – https://www.artslaw.com.au/articles/entry/graffiti-artists-argue-building-destruction-is-contrary-to-moral-rights/