What Rights do Artists Have in Publicly Displayed Works?

 “Traveling Musician,” By SEVEN

“Traveling Musician,” By SEVEN

Calling all mural and tattoo artists, you officially have your day in court!

Actually, several ongoing cases involving publicly displaying artists are defining not only the rights of artists and traditional property owners (i.e. building owners subject to graffiti), but also movie and video game publishers, car manufacturers, and political organizations. Before diving into the details, let’s take a stroll through the lovely, inspiring, and weird land of art law. To fully appreciate the sights and sounds of our journey, we need to reference our field guide for some examples of what may be considered publicly displayed art.

What are the different types of public works?

For starters, consider the various types of commissioned works. These may include publicly installed sculptures or personally canvassed tattoos. For the handful of cyborgs out there, they could even include neuromodulators. In each illustration, you have someone who conceptualized and/or created a work upon some request and for a fee, and subsequently may in principle claim limitations upon its subsequent use. The extent of those limitation rights are determined circumstantially by the nature of the work, how it was contracted, where and how it is displayed, etc.

Not every artist commands a commission per se for his or her display of a creative work. A graffiti artist may not be paid to tag a billboard or paint a mural, but may nevertheless derive acclaim from people who see her work; or, respect according to the brazen placement of it. An artist in the vein of Olafur Eliasson may wish to place tree trunks or miniature icebergs in the middle of a city sidewalk just to see how people interact with it. In an impromptu or otherwise non-commissioned work, an artist may also but to a lesser extent hold limitation rights against the actions of others.

Some publicly displaying artists, let’s just call them PDA’s, are closet utilitarians, such as the man who designs an abstract bike rack. The man through the reduction of his inner turmoil might also hold rights against others, depending upon the sequential manifestation of his Jekyll and Hyde. Was it his art adopted as a bike rack, or did he intend to make an abstract and interesting sort of rack?

What are some ways that a public artist might be injured by the actions of others? 

Once we grant a PDA rights and limitations upon others in a publicly displayed work, we are as well to consider how the artist’s rights might be violated. Perhaps the injury occurs through the whitewashing of an illegally etched mural, whitewashed by a property owner or city authority acting in its best interest. Perhaps it occurs through assessments of fees and taxes characterizing the art as something purely mechanical.  Perhaps it occurs through government censorship or giddy selfie. Obviously, intentional exploitation qualifies.

What types of lawsuits are being filed by artists over their copyrighted works?

Several PDA’s or holders of artists rights are currently litigating their alleged injuries. In Solid Oak Sketches, LLC v. 2k Games, Inc., 1:16-cv-00724 (S.D.N.Y., Sept. 21, 2018), a company acquired copyright rights from tattoo artists that had inked a handful of NBA players, and then sued the maker of the popular NBA 2K series video games for depicting realistic images of those tattoos within the game without permission from the holder of the rights. In Kapoor v. National Rifle Association of America, 1:18-cv-01320 (E.D. Va. Oct. 23, 2018), artist Anish Kapoor sued the National Rifle Association for using his famous art installation (Cloud Gate aka the Bean in Chicago) in a 2017 video called “The Clenched Fist of Truth.” And in Falkner v. General Motors Company et al, No. 2:18-cv-00549 (C.D. Cal. Sept. 18, 2018), a graffiti artist known as Smash 137 brought a copyright infringement and DMCA action against General Motors for its unauthorized depiction of his mural in alongside a G.M. manufactured car in social media ads.

What rights does a public artist or property owner have against others who monetize images or recordings of art on, attached to, or connected with buildings and other types of architecture?

Thanks to artists like Banksy and Revok, graffiti is increasingly recognized as a fine art that. (Before its fantastic shredding, a framed copy of Banksy’s iconic mural Girl with Balloon sold for over $1 million.) Despite its exposure to the public and natural elements, the graffiti artist may in some cases enforce copyright rights against unauthorized destruction or reproduction of the work. In Falkner, a federal district court in California recently denied G.M.’s summary judgment motion (i.e. a quick end to the case), focusing on key undisputed facts: (1) the artist was one of a group of mural creators invited to paint the parking garage; (2) the artist was allowed to choose where in the garage to paint his mural, and was afforded complete creative freedom with respect to the mural, having been given no aesthetic to match and not told of any function that the mural should play; (3) instead of selecting a theme consistent with the building’s function or any other suggestive study, the artist chose to create the mural using themes and motifs that were similar to those used on the paintings that he had exhibited at a solo show long before hearing of the mural project; and, (4) the architecture of the parking garage and accompanying building were already complete before the artist started painting.

In denying summary judgment, the district court wrested with the application of Leicester v. Warner Brothers, 232 F.3d 1212 (9th Cir. 2000), a Ninth Circuit case concerning the limitations placed on copyright assertions to pictorial, graphical, or structural works connected to architectural works under 17 U.S.C. § 120(a). Under § 120(a), “[t]he copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.” In other words, § 120(a) has been interpreted to mean that the public may freely depict buildings in public spaces without the need to fist ascertain copyright status and thus seek prior permission.

Leicester arguably includes three separate opinions to the issue of whether the 1990 amendments to the Copyright Act, extending copyright protection to architectural works but separately limiting their potential enforcement, fully subsumed the doctrine of conceptual separability, whereby certain non-utilitarian aspects of buildings might be granted independent copyright protection. Essentially, the Leicester court had to determine whether an ornamental feature of a building, that before 1990 might be copyrightable and fully assertable as separate and distinct from its unprotectable host building, would now be indistinguishable from the rights and limitations concerning the architectural work as a whole.

Judge Rymer in the majority opinion focused on the district court record and largely dismissed any consideration of conceptual separability based on a finding of a single, unitary architecture.

Judge Tashima in a concurring opinion disagreed with Judge Rymer’s reading of the district court record, and stated that the district court observed the surviving doctrine of conceptual separability but that it was limited to aspects not involving architectural works.

Judge Fisher in a dissenting opinion stated that § 120(a) did not limit the protections of pictorial, graphic, or sculptural works that could be considered both a part of the overall architecture but independently entitled to copyright protection.

The Falkner court avoided the issue of trying to apply a somewhat convoluted opinion about whether conceptual separability survives § 120(a), denying summary judgment on the easier question of whether the graffiti mural could be considered part of the architecture of the parking garage. Based on the key facts outlined above, the court found that the mural concept did not necessarily integrate with the concept of the garage, that it was not designed to appear as part of the building, and that it did not serve a functional purpose related to the building.

Separately, the Falkner court granted summary judgment in favor of General Motors in defense of the DMCA claim. Falkner/Smash had argued that GM’s agent photographer had intentionally removed or altered copyright management information by photographing the mural from a particular angle so as to avoid the artist’s signature. The court distinguished framing of a scene from cropping or editing of an image for satisfying purposes of 17 U.S.C. § 1202(b).  

A key takeaway here is that in the Ninth Circuit at least courts still question whether certain ornamental enhancements of a building, for instance a mural, moss wall, or fountain, if independently copyrightable, have superior protections against unauthorized recording over more generic and integrated aspects of the building, which, even if copyrighted as an architectural work, does not permit enforcement against unauthorized recording.

Okay, so what’s the pitch?

Of course there’s a pitch! Why else would we write this :)

Oddly enough, the Falkner court did not discuss the shifts in technology and social sharing that enables greater potential for recording and monetization of public works. If you are planning a destination photo shoot or video production, it is best to consult with an attorney concerning all rights and licenses necessary for downstream display, reproduction, and distribution of your recordings.