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Art Sales Graffiti Artists
Can I legally sell photos I've taken of graffiti art, without the artist's permission?
I have taken many photos of graffiti art that I would like to frame and sell. Being an artist myself, I respect any and all artists rights, however I do not know the artists and I have no way of contacting for permission. What are the laws concerning sale of photos of publicly viewable graffiti art? Seems the law may be a little fuzzy in this area...
Graffiti is absolutely, undeniably, completely, utterly, totally and irrefutably granted sovereign federal copyright protection under USC Title 17 Section 101+.
Using graffiti images in your pictures without express written consent from the copyright holder, is an absolute violation of federal law, and exposes you to catastrophic liability, as follows:
-- Cost to defend and win a copyright lawsuit: $500,000 (avg)
-- Cost to defend and lose a copyright lawsuit: $500,000 (avg) + up to $150,000 (statutory), or more
-- Cost to defend and settle a copyright action: $8,000 to $15,000 (avg), per violation
-- Criminal penalties that can be imposed by the government: Up to 5 years in prison and $250,000 fine (first offense)
The bigger question everyone here should be asking is, why WOULDN'T the graffiti artist sue you?
Because they "might be prosecuted for a misdemeanor crime?"
Copyright is a federal issue. And under federal law, the copyright holder could seek statutory damages of up to $150,000, without proving that you caused them ANY actual damage. Additionally, if they win... you have to pay for their legal fees and courts costs.
They could walk away with 100's of thousands of dollars of your money.
So, thinking a $200 fine for committing a misdemeanor is a "deterrent?" Umm. Unlikely.
A lawyer would take the case, for free... if nothing else, he/she is going to get tremendous publicity out of it...
Let alone the fact that, IF YOU LOSE THE CASE, YOU HAVE TO PAY THE GRAFFITI ARTIST'S LEGAL BILLS.
Someone wrote that you can "do anything you want with pictures of statues, because they're outside."
I don't mean to sound rude... but this statement is completely, and totally wrong. Statues, models and virtually all three-dimensional works of art are absolutely copyrightable. And taking photographs of those statues, without consent of the copyright holder is violating that holder's exclusive rights of derivative creation (USC Title 17, Sections 101 - 173)
Buildings can also be copyrightable, in various circumstances.
Any art that is ON the building is absolutely copyrightable.
Additionally, "public domain" does not mean "outdoors." Public domain is currently defined as a work that has existed beyond its term of copyright protection... which is currently defined as the life of the artist, plus 70 years.
Thus, the only way graffiti could absolutely be irrefutably defined "public domain," is if it was painted on the wall before 1964.
So to close...
You absolutely MUST gain permission from the artist, before you incorporate their images, in your works. Period.
Hope this helps...
G.C. Hutson, Chief Executive and Senior Partner
Sadien Intellectual Property, Inc.
http://www.Sadien.com
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