Illegal Graffiti Gets Copyright Protection Because It Is Still Art

Everyday on my walk home from work, I see this or something like it tagged to the side of my apartment building:


Graffiti intrigues me because of its contentious nature in "civilized" society.  The artist in me is excited by the skill and craftsmanship involved in making something like this (although I can barely read it; it might as well be written in Klingon).  But the law-abiding citizen in me tempers that excitement with the knowledge that graffiti, unlike most other forms of art, is predicated on using someone else's property as a canvas... often without their consent.   And because graffiti is usually illegal, it raises a decorum problem that often confuses people into thinking that the normal rights of copyright ownership don't apply - i.e. "you can't copyright protect vandalism because it is illegal."  But that's bunk.

I've known a fair few graffiti artists over my lifetime and I can safely say that they're not a populace that's overly concerned with asserting ownership rights over their work.   Primarily because asserting ownership would be an admission of guilt resulting in some form of criminal penalty such as a fine or even jail time (there's a reason Banksy can't revealed his identity, after all).  The other part of it is the political motivation that often accompanies graffiti: that property ownership is a social construct anathema to the public good.  Why else vandalize someone else's building with such artistry and flair when a sledgehammer or molotov cocktail can drive home the same point in a fraction of the time?  [Author's note: of course, there's always the possibility that the graffiti was commissioned by the property owner, in which case, the tagger is not burdened with criminal concerns and will want to assert and maintain copyright ownership. Here's an interesting NY Times article from 2007 about graffiti artists who were upset when their commissioned works were mistaken for vandalism and photos of the graffiti ended up being published in a book without their permission.  If you're a graffiti artist who is hired by a paying party, you should really check out my last post on work-for-hire.]

But make no mistake about it, graffiti artists, even the covert ones tagging buildings without permission, do have ownership rights over their work.  Graffiti is absolutely 100% protected under U.S. Copyright Law and I'll have words with anyone who says otherwise.  Our copyright law lists the following types of works that are granted copyright protection:

  1. literary works;
  2. musical works, including any accompanying words;
  3. dramatic works, including any accompanying music;
  4. pantomimes and choreographic works;
  5. pictorial, graphic, and sculptural works;
  6. motion pictures and other audiovisual works;
  7. sound recordings; and
  8. architectural works

And while graffiti (along with many other forms of art) is never explicitly mentioned anywhere in our copyright laws, it's clear that the list was purposefully left open-ended to grant protections to art forms that hadn't yet been invented and hadn't been contemplated by the drafters of the law.  I should also point out that nowhere in our copyright law does it say that a type of art forgoes protection simply because it could be illegal.  That's what this article by Celia Lerman argues and I agree without reservation.   Copyright law places no judgment on art, the motivation behind the art, or the form in which the art takes.  It is, for all intents and purposes, judgment neutral.

The fact that an artist can own the copyright to a piece of illegally made art that emblazons the side of someone else's property creates an interesting dynamic when a third party takes a photograph of that graffiti (like the one I took above) and attempts to profit off of it.  That's infringement of copyright and doing so without the artist's permission could actually result in the artist taking you to court and winning monetary damages (if the artist isn't concerned about the criminal ramifications, obviously).  Luckily, I'm in the clear because I can assert Fair Use over my photo since it was taken for non-commercial, educational purposes.  But if you're like the photographer in that NY Times article I linked to above, watch out!

So ownership over the copyright to graffiti is vested in the artist regardless of its legality.  But that's not the end of the story, because that art, while owned by the artist, is completely reliant on someone else's private property.  And property is kind of a big deal in this country.  The right to property is mentioned explicitly in the Fifth and Fourteenth Amendments, and the Third Amendment is built entirely around it.  Let's not even go into the entire legal disciplines that arose around property law and made my life in law school an unwinnable shit-show.  Property is important, which means that the needs and wishes of the property owner will almost always supersede the rights of the graffiti artist.  So when my landlord decides to blast off the graffiti adorning my building with a power washer, he can do that without fear of legal repercussions from the artist (although why bother?  The taggers are just going to show up again).

The truth is, despite the political hand wringing over it, graffiti is just like any other type of art form and gets the same protections.  What makes it difficult at times is its relationship to the surrounding environment.  And unfortunately, as long as graffiti remains illegal, the oath I took to uphold the law will mean I have to walk a fine line between the rights of the artist and the rights of the canvas owner.  It will be, for the foreseeable future, an issue that tugs on my Gemini heartstrings.

Sherlock Holmes and the Case of Copyright Duration

sherlock1Is Sherlock Holmes in the public domain?  Holmes scholar and lawyer Leslie S. Klinger believes so, and he is suing the Conan Doyle estate to prove just that.

It all started, as these things do, with money.  You see, a few years ago Klinger published a new Holmes novel and, like many who wished to capitalize on the popularity of Sherlock (Guy Ritchie and Steven Moffat in particular), he paid a hefty licensing fee to the Conan Doyle estate for the privilege.

Recently, Klinger decided to have another go at Sherlock; in particular, he wanted to publish a collection of short stories. Once again, the Conan Doyle estate demanded a payout.  Much like the Tolkien estate, the Conan Doyles are renowned to be fiercely protective of their copyright and they doggedly pursue anyone whom they feel infringes it.  This time, however, Klinger decided to sue the estate as a preemptive measure, claiming that Holmes and his entire canon (supporting character like Watson, Moriarty, Mrs. Hudson, the house at 221B Baker St, character traits like Holmes' deductive reasoning and friendship with Watson, etc.) were in the public domain and thus, he didn't have to pay them a licensing fee.

This is a pretty serious move and in all likelihood it has legal support.  That's because in the United States all works published before 1922 are automatically in the public domain and are thus available for anyone to profit from. [Author's note: aside from pre-1922 works, any work whose copyright expires will move into the public domain.]  Sherlock Holmes made his first appearance in 1887's A Study in Scarlet, and nearly his entire world found its way into print before 1922.  By that logic, it's hard to see how the character won't be found to be in the public domain, and if a judge does find for Klinger, that's going to have major repercussions for the character.

In contrast, the estate argues that because Sir Arthur was still publishing Holmes stories as late as 1927, the character and his entire canon don't fall into the public domain. That's where the wrinkle in this case appears.  Apparently, one of the authors whose short story Klinger wants to publish used a Holmes character that didn't appear in a published work until 1924. The case is really interesting and you can read all about it here.

I brought up this issue because of a quote at the end of the article.  When interviewed about the Klinger v. Conan Doyle case, New York based entertainment lawyer John J. Tormey III said that, "Copyright was intended by its progenitors to be a limited monopoly, not an indefinite monopoly."  Amen brother!  On at least two occasions (here and here), I've discussed how the original purpose behind copyright protection in the U.S. wasn't to grant the author everlasting control at the expense of all others, but to foster innovation for the betterment of society.  Our creative landscape is littered with copyright owners (some individuals and families, but mostly corporations), holding their copyrights in an iron death grip, suing the crap out of anyone large or small (usually small), in order to prevent them profiting from that copyright.

That's why I think we need a drastic overhaul when it comes to duration of copyright - in modern political parlance, I would say that I've "evolved" on the matter... which really means I was never a fan of the current duration allowing a copyright to last for the life of the author, plus 70 years (and going up to 95 years for corporate copyright holders), but I just never felt comfortable saying it aloud until now.  Forgive my lack of lawyerly eloquence, but life plus 70 is just too damn long.  Look, I get that if you create something that's profitable, you want to be able to control it, make your living off of it, and provide for you family.  That's a natural instinct and a praise-worthy one.  Piracy - the use of your work without your permission - should be dissuaded and punished where appropriate.

The problem with the current durational scheme is that it results in less innovation and artistic expression and more lawsuits.  Under the current law, the author's estate can use and exploit the author's original work for several generations after he dies. If you can stay rich off of your grandpa's work, what incentivizes you to create your own work of artistic add something to society?  Even worse, many works of artistic expression end up being purchased by large corporations who use their considerable resources to suppress smaller artists who wish to use those copyrights as points of inspiration for their own work.  [Corporate bullying of individual artists is one of my bugaboos.]

That's why I propose the following four-tiered amendment:

  1. A copyright will last for the life of the author and no longer.  Upon the author's death, the copyright will move into the public domain.
  2. If the author sells the copyright to another party (a corporation, say), the party will have 15 years to use the copyright.  If the party does not use the copyright in 15 years, the copyright will revert in full back to the author.  If the author dies before the copyright can revert back to him, the copyright will expire and the work will move into the public domain.
  3. if the author sells the copyright to a non-corporate buyer, and the buyer uses the copyright within the 15 year timeframe, the copyright will last for the life of the buyer.  Upon the buyer's death, the copyright will move into the public domain.
  4. If the author sells the copyright to a corporate buyer and the corporation uses the copyright with the 15 year timeframe, the copyright will last for 70 years, measured from the original sale of the copyright.  At the end of the 70 year period, the copyright will move into the public domain.

I know, this makes me look like an anti-free market socialist.  In fact, I'm willing to bet within two days of publishing this post, I'll get some pushback on the feasibility of this system or the logic behind it.  I don't care though. The truth is, limiting copyright ownership is the best way to spur innovation and growth, which is what our founding fathers envisioned.  A system like this will help limit perpetual copyright monopolies and inspire copyright holders to be pushing boundaries.  Hell, even The Economist agrees that copyright durations should be shorter, so I can't be totally out of my mind.

Sherlock Holmes is probably in the public domain already, but if he isn't, he should be.  Arthur Conan Doyle created him over 120 years ago and his descendants have profited amply from his popularity.  Now it's time for Conan Doyle's great-grand kids to go out there and make their own mark on society and let the world have Sherlock.

"Caveat Emptor" or Why It's [Kind of] Okay For Facebook and Instagram To Steal From You

"If you are not paying for it, you're not the customer; you're the product being sold."

- Meta-Filter user blue_beetle


I had planned on writing about Instagram's massive PR shit-storm this week so I could address the ramifications of its new terms of service; you know, where they basically said to their users "you still own your copyrighted work, but we're going to strip away all the rights surrounding that so we can make money off your work and you can't do anything to stop us." [If you don't know, Instagram proposed that they could sub-license photos you posted in the app to other entities such as advertisers without paying you, the copyright owner]. I ended up not writing about it because the backlash was so big and swift against the social network that they backpedaled, reverting to their old terms of service.  Thus ended the issue in my mind.

Then I had a change of heart because I realized that this was a good time to discuss a topic that I think everyone should be well versed on: caveat emptor, a.k.a. let the buyer beware.  Caveat Emptor has its roots in property law and the idea is pretty simple: you should do the research when you buy something.  If you fail to cross all the "t"s, dot all the "i"s, you don't have any legal recourses when you buy something that turns out to be defective. When you sign a contract, courts presume that both sides know what they're getting themselves into.  That's why you generally can't plead ignorance when a contract screws you over.

So when blue_beetle says "if you are not paying for it, you're not the customer; you're the product being sold" he means that when you sign up for a Facebook or Instagram account, you have to assume that these services want something from you, and you should read their terms of service and find out what you're getting into.  And truth be told, I [mostly] agree with blue_beetle.  Now I certainly don't condone someone profiting off your copyright without giving you a cut.  And I really get up in arms when large corporate copyright holders try to stick it to individual artists who don't have the power or wherewithal to fight back.  That violates everything I stand for.  But people do need to have  certain expectations when they sign a contract with these services - and make no mistake, a Facebook or Instagram account is a legally binding contract.  These services are not charity organizations; they are corporations (or rather, a single large corporation due to Facebook's acquisition of Instagram earlier this year) and the paramount driving force of a corporation is to make lots and lots of $$$.  If that means exploitation of its user base, then so be it.

When Facebook shares your personal information with advertisers, you don't have an expectation of privacy to that information.  After all, you shared it freely and willingly.  And even if you limit which users can see that information with Facebook's privacy settings, your information is never private to Facebook - your contract is with them, not with other Facebook users.  Meanwhile, if Instagram decides they want to license photos you share to advertisers, then can do it simply because you agreed to their terms of service.  Is it ethical?  Not really.  But is it legal?  Unfortunately it is.

I believe that the first step to controlling your artistic destiny is becoming vigilant to the situations you get yourself into. When you post a picture to Facebook or Instagram, you should understand that they will take some level of ownership over that picture.  Despite my many gripes, I will be sticking with Facebook and Instagram for the time being.  I understand that they want something from me and I'm willing to accept that in return for the personal and commercial benefits I derive from using those social networks.

But just because something is legal doesn't mean we have to let them get away with it.  There are other ways to measure success beyond a lawsuit.  For example, exploiting users' copyrighted work as Instagram tried to do this week is pretty bad policy.  We know that because the level of apoplexy that erupted forced Instagram to scurry back into the warm (if financially shallow) embraces of its old policies.   Instagram knows isn't the only photo sharing app out there with neat filters and it learned that if it can't work WITH users instead of against them, well there's always Flickr and Hipstamatic waiting to take your business.  And they'll be much more agreeable to having terms that benefit the user.

Happy Holidays everyone!

[Author's correction: in my post a few weeks ago about the Facebook copyright policy issue, I stated that Facebook can't arbitrarily change its terms of service once you sign them.  While that is generally correct in normal contract situations, that is not how it works with services like these.  Both Facebook and Instagram state in their terms of service that they may materially change their terms at will, and by continuing to have an account with them, you agree to those  new terms.  I think that such terms are probably bad policy as well, but I see nothing legally wrong with them.  If there are any contracts attorneys out there who are willing to educate me otherwise, I'm all ears.  I'd love to hear that such terms violate some law or another.]