Tuesday, March 26, 2013

Mural Artist is Coming After Me

Dear Rich: I'm a budding photographer with a passion for graffiti and mural art. I photograph it whenever I travel and here at home in Philadelphia. Many of the images I've captured no longer exist, but some do. One of my photos, taken recently in the Mission District of San Francisco has generated some controversy. A man who claims to be the artist contacted me today to say that I am selling illegal reproductions of his copyrighted work. He wants me to remove them immediately. He claims to own "the intellectual and copyright rights to" the murals. I did some research before posting the images to my Etsy shop and came to the conclusion that the graffiti was public property, like the much photographed LOVE statue in Philly or the Eiffel Tower. I definitely want to do the right thing -- my main incentive for photographing the work is to preserve and protect it -- regardless, I'd really appreciate your advice. Assuming that the person claiming copyright can verify ownership, we think you should remove the photos. Your two examples of "public art" -- the Eiffel Tower in Paris and the LOVE sculpture in Philadelphia -- aren't really applicable to the mural situation. The Eiffel Tower is a public architectural monument that can't be protected under copyright law. As we mentioned in a previous entry, shooting and reselling publicly visible architecture is almost always permitted. As for the LOVE sculpture by artist Robert Indiana, that is not protected under copyright law because the Copyright Office apparently refused to register the work, claiming that the law does not protect single words. Typically, however, public murals and sculptures are protected by copyright law.
Why you should take it down.  We talked about the rights of mural artists in a previous entry and explained how mural artists are protected not just by copyright law, but also by some state art laws. Merely creating the mural doesn't mean that the complainer owns the copyright -- the mural may have been a work made for hire or the copyright may have been assigned. Chances are good, however, that if he's complaining, he's the owner -- why else hassle you? The copyright owner could file a DMCA complaint with Etsy (or Etsy's ISP) or could sue you (or both). If you can make this situation go away by just removing the offending photos, that would be the most efficient course of action.

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