It is with much trepidation that we dive into this topic.  It is very hard to just dip your toe into the graffiti water without jumping in the pool. The use of graffiti – plural for graffito – as either background or integral to a photo shoot is fraught with easily avoidable peril.

We suggest avoiding using any graffiti in an image as to avoid any possibility of getting the photographer, ad agency or client involved in any potential or actual legal headache. Before we delve into some of the legal issues which could arise by using graffiti, we will start by giving a simple method which will avoid potential grief.

Best practices for photographers, illustrators and clothing manufacturers is to NOT employ the use of graffiti UNLESS there is a signed, written agreement by and between the artist and the photographer/client to employ the artwork in the photographs. Much like a model release such a written license should specify the nature and extent of the permitted use.  If the graffito has been copyright registered by the artist, a copy of the USCO Copyright Registration should be attached and made part of any such agreement.

Another method whereby graffiti may be “safely used” is to have the client retain the services of one or more aerosol artists on a Work For Hire basis to create graffiti for use in a particular as campaign or collection of images.

We will now endeavor to provide a basic view of the state of the law regarding graffiti.  In so doing we will keep it short and NOT comprehensive. Rather we will attempt to supply the very basics which every photographer, illustrator or potential user of graffiti ought know before even considering the use of existing artwork.

Remember if you want to avoid any chance of aggravation, obtain the appropriate written, signed licenses from the artist and/or property owner.  That job may best be done by your client and you must get a signed copy of that release/license for your own protection.

Graffiti if it contains sufficient copyrightable elements can be copyright registered if it was created legally. If say, a graffiti artist trespasses on a building owner’s property and without permission creates a huge, magnificent, intricate work of considerable artistic merit, the building owner can paint over it without obtaining any permission from the artist. This despite the fact that the artwork could easily have been registered had it been created and applied with the permission of the building owner.

Mere “tagging” typically does not contain sufficient copyrightable elements to gain a valid registration;

The Visual Artists Rights Act (VARA) is the closest law(s) in America that recognize very limited moral rights that an author has over his/her work. There is a VARA “section” in the US Copyright Law and there are also about one dozen state law versions – NY, CA, MA and LA among them. VARA is extremely limited in its applications. VARA law(s) cover limited fine art editions, paintings, sculptures and photos produced for exhibition. Often VARA comes into play when a commissioned artwork is threatened with destruction or merely being moved from one location to another.

For a more detailed explanation of Vara, read our previous blog piece “A VARA Gooda Law – Moral Rights“. Simply put, VARA  stands for the propositions that: an artist can claim authorship, control the use of his/her name in connection with the work, control any modification to it and to prevent its destruction ( in certain circumstances)  if it is of recognized stature. The shorthand view is that VARA speaks to the integrity of the work and a preserving credit to the creator. An artist must be prepared to demonstrate that the work has stature and is viewed as meritorious by society as a whole or (just) the artistic community to invoke and be “covered” by VARA.

VARA does NOT cover the vast majority of copyright infringement scenarios including: packaging, posters, charts, use in newspapers, magazines, websites, books and equivalent forms of advertising, marketing or promotion of products, services or entities.

Along comes a well publicized case in New York which has become known as the “5Pointz” case.  The mini Cliff Notes version of the facts is that a building complex owner informally allowed the building to be strewn with graffiti.  He later orally agreed to permit a given person the right to curate the works of what he described as “qualified aerosol artists”. The complex became a neighborhood fixture/tourist attraction.

Eventually the complex was to be developed as the area was being gentrified and the issue became whether the existing exterior “artwork” could be destroyed without violating VARA law(s).  The court ruled that VARA could not be applied for the purpose of preserving 5Pointz as a tourist site or a tableau of artistic works. The artists and owner could have entered into a written agreement preventing or limiting the owner’s right to move, alter or destroy the “un-commissioned” work which the owner did not request, order or pay for.

So how and why does this issue seem to arise in more than a few photo disputes? Good question.  The use of graffiti as background in assignment photo shoots for fashion ads is common.  Advertisers believe that the use of graffiti in an ad gives the shot an “urban feel” or the graffiti being used has gained notoriety on its own merit.  A request from a client to employ graffiti poses a problem for the photographer.

If the graffiti is already in existence it may be copyright registered. The copyright might belong to the building’s owner or the artist. Use of it in the shoot may constitute copyright infringement. Best practice to employ when a client wants to use graffiti is either to have it created for the shoot only by an artist who has signed a Work For Hire agreement or obtain a signed written license from the copyright holder of an existing work with a copy of the registration attached to the license.

The old adage, “If in doubt, don’t do it” applies here.