“Unauthorized uses of others’ copyrightable works in unsponsored posts will likely be tolerated due to changing attitudes about such uses and the motivations behind street art. However, when it comes to sponsored posts, social influencers should beware.”
The U.S. Court of Appeals for the Second Circuit recently confirmed that street art is, in fact, protected by copyright law. Castillo v. G&M Realty L.P (Feb. 2020). But you wouldn’t know that from looking at Instagram. In recent years, the social media explosion has transformed “aerosol art” from a nuisance to a promotional tool. What used to be painted over the next morning, can now garner attention for a location and lead to flocks of social media junkies posing for and posting pics, leaving local shop owners hoping the foot traffic will increase sales. Many shop owners have gone so far as to commission works on their facades precisely with this in mind. The easiest way to lure in the Instagram-generation to your store is to have something unique that they can post in the hopes of adding followers. For many of these Kardashian wannabes, the goal is to build their “brand” so they can get sponsorship deals and rake in free goods and cash. A new sub-economy is exploding but, not surprisingly, few stop to consider the legal implications.
From Graffiti to High Art
Consider the hypothetical case of Emma, a budding social influencer who is excited that one of her favorite brands has offered her free products and compensation. In return, all she has to do is post an Instagram pic of her with the company’s products. She travels to a trendy area and poses in front of an interesting mural covering an exterior brick wall. After finding the perfect shot, she uploads the picture, while properly disclosing for Federal Communications Commission purposes that it is a sponsored post. Emma’s ambition and ability to monetize a new medium is commendable, but what about the copyright implications?
If there was any doubt that street art is protected by copyright, it was recently erased by the Castillo v. G&M Realty L.P decision. The dispute centered around 5Pointz, a series of dilapidated warehouses in Long Island City, New York, transformed by its owner into a curated exhibition space for aerosol artists. When the owner sought to demolish 5Pointz to build luxury apartments, the curator and numerous artists sued under the Visual Artists Rights Act (VARA) of 1990. The Second Circuit made clear that street art is entitled to copyright protection, relying on a scholar’s opinion that street art has “blossomed into far more than spray-painted tags and quickly vanishing pieces . . . painted by rebellious urbanites. In some quarters, it has become high art.” The Second District concluded that despite the impermanence of such works, VARA provided the artists with the right to prevent any deforming or mutilating changes to their work, even after title in the work has been transferred, and upheld the award of $6.75 million in statutory damages. Although the Second Circuit did not address uninvited street art, it cited Banksy as an example of the rise of street art, opening the door to claims by vandals whose art achieves “recognized stature.”
There is an important distinction to be made between art affixed to the exterior of a structure and the structure itself. Due to the limited copyright protection for architectural works, the owner of a building cannot stop others from including the building in their commercial works. For example, in Rock and Roll Hall of Fame and Museum v. Gentile Productions, 134 F.3d 749 (6th Cir. 1998), a photographer selling posters of the I.M. Pei designed Rock N’ Roll Hall of Fame in Cleveland beat the Museum’s copyright action. Since the building did not serve a source-identifying function and the photographer did not imply sponsorship by the Museum, he was free to continue to sell his posters of this architectural work without restriction. However, what if Rock ‘N Roll Hall of Fame had a large mural on its exterior? Would that change the analysis?
Courts Have Been Clear on What They Think is Fair
A good example of this quandary can be seen in Leicester v. Warner Bros., 232 F.3d 1212 (9th Cir. 2000). Social influencers may not know that long before the Marvel Universe, Warner Bros. launched a Batman movie franchise in the late 1990s. In one of the films, Batman Forever, downtown Los Angeles (before it was the cool place for influencers to live and create their works) served as the location for a scene in fictional Gotham City. The location scout chose Figueroa Street for a chase seen and focused in on the building known as the 801 Tower. The building included a courtyard and wall connecting it to the next building which featured towers and gates commissioned from artist William Leicester. While Leicester assigned certain use rights to 801 Tower, he retained the rights to his artwork and objected to its use in the film. The studio, armed with the permission and copyright law, argued that Leicester had no claim because the artwork in question was part of the street wall and therefore part of the architecture. The Ninth Circuit did not agree.
Another old but instructive case is Ringgold v. Black Entertainment Television, Inc.,126 F.3d 70 (2d Cir. 1997). The case centered around the use unauthorized use of a poster of Faith Ringgold’s Church Picnic Story Quilt as set dressing in a church scene of an episode of the television series Roc. The quilt was chosen because it conveyed aspects of the African-American experience in the early 1990s. An Atlanta museum owned the work and had a nonexclusive license to reproduce it for the poster featured in the scene, but Ringgold retained ownership over the work, including its derivative exploitation. Although the quilt was visible in one scene nine times, for a total of 26.75 seconds, the Second Circuit applied the relevant factors and rejected the studio’s fair use defense. When considering the “nature of the work,” the court concluded that the use of a copy of the quilt as set decoration, without supplanting Ringgold’s exploitation of the work, may be enough to defeat the fair use defense. Even more troubling was the court’s analysis of the “effect on the potential market” factor. The court acknowledged that the use might have a positive impact on the artist’s exploitation of the work, but concluded that the factor weighed in Ringgold’s favor because it could harm her efforts to license the piece as set decoration, even though she had never done so and expressed no interest in doing so in the future. This is the type of circular reasoning that gives “fair use” a bad name.
The Lurking Danger
Applying these copyright principles to the hypothetical Emma and other social influencers, it is clear that they are blissfully unaware of the lurking dangers. Unauthorized uses of others’ copyrightable works in unsponsored posts will likely be tolerated due to changing attitudes about such uses and the motivations behind street art. However, when it comes to sponsored posts, social influencers should beware. While the Instagram generation may not think traditional copyright law applies to their posts, it does, and the Second Circuit recently made clear that street art, despite its temporary nature, is protected by copyright. As the social influencer industry grows and becomes even more lucrative, so grows the threat of claims arising out of unauthorized uses of street and other publicly displayed art.
Image Source: Deposit Photos
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