Looking through some photos I took when I was in Bristol shopping with my Mum, I came across some I’d taken in “Graffiti Ally” (along Nelson Street between Broadmead and Colston Avenue) and had the urge to use some of those images in digital art, but unsure of the legality of it. Indeed even the copyright law governing posting my pictures of this wonderfully vibrant area online without crediting the artists who created the various murals was unclear to me.

If the art is on the side of a building, does the artist own that work, or does the owner of the building? The owner of the building certainly has the right to paint over that work without legal repercussion. Similarly, how might copyright apply to tattoos? Once art is inked by the tattoo artist on to a body, does the owner of that body then own the tattoo copyright, or does the tattoo artist forever own it for his work? Would the person who wears that tattoo have to pay royalties if they want to make money out of those tattoos by being photographed for print media etc.?

Having researched, a simple explanation I’ve found from various online sources is that any lasting art which is created more than momentarily is copyrighted to the creating artist, so in the case of graffiti, while the building owner can destroy the work, they do not own the copyright. If in a court of law however, might the building owner successfully argue that the texture of the building, (its brickwork and other architectural features,) contributes significantly to the piece of art, which would not have the same result if created on a canvas? It also doesn’t answer the tattoo conundrum though and would copyright law be affected if graffiti is illegally painted? I’m yet to find answers to these questions!

The artist Richard Prince was sued in December 2008 by photographer Patrick Cariou for use of his images captured of Rastafarian culture, it’s people and environment, in his Canal Zone Exhibit at the Gagosian Gallery in NYC. His transformation of the original images into his own works of art were found in May 2011 not to be permissible as “Fair Use” and Patrick won the suit. However in appeals, the court decided that most of Prince’s pieces could be deemed permissible under “Fair Use” because they were of a very different aesthetic than Cariou’s original photographs, with significantly different character.

From the picture above I quickly created the piece next to it, which while requiring original creativity (arguably I know) I don’t think ‘transforms’ the image enough to be considered fair use in the Prince vs Cariou argument of it becoming something significantly removed in character and aesthetic from the original. As such, to use it for something other than criticism, comment, news reporting, teaching, scholarship or research would infringe upon the copyright. (I use it here for comment and criticism.)

If I were to draw or paint that original art myself and by my own hand before manipulating it, it would be more original, whereas my taking a photograph of that art and manipulating the image would depend upon the level of transformation from the original to the secondary work as to infringement of copyright, as judged in a court of law. Meaning the level of what constitutes copyright infringement remains dubious and with no clearly defined rule, artists are obliged to go to court in order to find out.

I would argue also that photographic pieces where the graffiti art is not the only focus of the piece is permissible, as in the photo below, where it is a part of the landscape which includes the building on which it sits and the surrounding area. The photograph alters the mood of the graffiti art as it converts what is a mother and child portrait to an architectural landscape of which the portrait is a part. Inclusion of the copyrighted piece might not be incidental, but it is not the primary focus. However it’s uncertain how this might play out in a court should someone sue for commercial use of a picture of this type.

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A simple rule of thumb which I think works in art and general life is to be original even when you’re copying something. Without originality you’re bland and if you intend to make money off of it, you’re criminal too.

By all means use other art as inspiration – artists have been doing that for centuries. To that end, going back to the “onandonandon” graffiti piece from Bristol’s Nelson Street, I have now started my own piece, to achieve a similar mood to the manipulated image I used as an example, while remaining within copyright and being far more original. What grabbed me in the original graffiti piece was the ink doodle-like quality of the mural and the composition of spiraling words surrounded by an abstract stylized 2-demensional landscape and I hope to capture that aesthetic in my own piece.

If anyone has further insight to copyright law as it relates to illegal graffiti or tattoos, I encourage you please to add comment.

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