Photographing Street Art
These days, portraits posed in front of murals and graffiti are prolific.
Here are some guidelines to consider.
BY AARON M. ARCE STARK
When it comes to shooting more
interesting wedding portraits, many
photographers have taken to the streets,
seeking “public” art as backdrops. But is
photographing street art in this way a
violation of the artist’s copyrights that is
legally actionable against the
photographer? Let’s find out.
IS STREET ART COPYRIGHTABLE?
In general, artwork becomes eligible for
copyright when it is fixed in a tangible
medium (for example, painted on a brick
wall), and it must be original to the author
(i.e., not a copy of a someone else’s work).
The fact that street art is openly displayed
in public does not change a street artist’s
ability to protect his or her work from
The Copyright Office has clearly stated
that “titles, names, short phrases and slogans;
familiar symbols or designs; mere variations
of typographic ornamentation, lettering or
coloring are not eligible for copyright.” Why?
Because such work, no matter the amount of
time and effort an artist has invested or how
artistically drawn, is not considered “original”
to the author.
As a result, some street art of short words
and phrases, although artistic, may not
qualify for copyright.
“Graffiti” is traditionally defined as
a drawing or painting on a wall that
is placed there without permission
(vandalism). While U.S. copyright law does
not state whether such art is eligible for
copyright, courts generally do not reward
criminal action. Moreover, the purpose of
copyright law is to “promote the Progress
of Science and useful Arts,” as stated in
the U.S. Constitution. Some have argued
successfully in court that artistic vandalism
is not “useful art.” Therefore, while this issue
is not clearly defined in U.S. copyright law,
it seems that art placed on property without
permission is less likely to be as eligible for
DOES PHOTOGRAPHING STREET
ART VIOLATE THE STREE T ARTIST’S
Under U.S. copyright law, the violation
of a copyright owner’s exclusive rights
occurs when an infringer copies and/or
creates a “derivative work” that is a copy
or “substantially similar” to the copyright
owner’s work. Thus, taking the photograph
of a colorful mural alone, for the specific
purpose of making a copy of the mural
itself, may violate the mural artist’s
copyright, especially if the image is then
sold by the photographer for a commercial
purpose (such as an advertisement).
However, professional photographers often
use street art as a backdrop to their projects
or photograph the mural together with
other elements, and creatively use lighting
and composition to create something
that is more unique and thus “original”
to the photographer. In such cases, a
defense known as “fair use” may apply.
Unfortunately, though, there is currently
no way to definitively measure when
infringement ends and a new work begins.
To avoid a copyright infringement action,
photographers must be mindful of a few
general benchmarks when photographing
street art: ( 1) whether the street art is
copyrighted or copyrightable (perhaps try
to find out whether the mural was painted
with permission or qualifies as vandalism);
( 2) if the image uses the street art in a
“transformative” or minimal way (the more
creative the image is, the more elements
embedded in it, the better); and ( 3) how the
photograph will ultimately be used or sold.
Photographing street art for commercial
purposes necessarily carries its risks, but
these guidelines may help you avoid or
defend a possible legal action resulting from
shooting street art within your own images.
Aaron M. Arce Stark is a lawyer for artists
and entrepreneurs. Learn more about his
law firm at arcestarklaw.com. He is sharing
his legal knowledge to Rangefinder
monthly—let us know what issues or topics
you want covered by sending your questions
on photo- and law-related topics that you
want Aaron to answer to rangefinder@
Taking a photo of
a colorful mural
alone, for the specific
purpose of making
a copy of the mural,
may violate the mural