Wednesday, March 18, 2015

brush with the law

4Burners is a New York City tagging crew.

Section 120 of the Copyright Act preserves my right to take public photos of a copyrighted building designed by someone else.

The Visual Artists Rights Act of 1990 codifies certain moral rights allowing graffiti artists to copyright their work despite being painted on the side of someone else’s copyrighted building.

Especially when that work is signed.

My photographing is where it starts getting tricky.

My photo of a graffiti artist’s tag is a pictorial representation of work by both the graffiti artist and also the architect of the building.

But I hold the copyright on the photo I took. Got it?

So can I sell copies of my photo since I hold copyright on my work?

Yes. And no.

If I just take a basic shot of the graffiti and try to sell it, under VARA that might be considered “a modification detrimental to the artist’s honor or reputation” and my commercial use could be denied.

But if I head out to Hunt’s Point before sunrise and set up reflectors and a tripod and wait out the lighting until just the right moment, and catch a bit of the surrounding industrial environment in the frame...

...a court might deem that use

“sufficiently transformative”

...and grant me license because I made artistic judgments 
of my own.

Under that use, neither the architect nor the muralist could bring a claim because my photo is considered an original work of authorship, in and of itself.

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