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Can you use street art for your own products without permission?

Mural created by street artist Rone in Adelaide, South Australia. This photograph has been reproduced with the artist’s permission.
Sharon Givoni
Written by Sharon Givoni

In recent times, street art has gained a great deal of commercial value leading to an increasing number of businesses using this distinct and exciting art form in their promotional material and branding. Prints, chairs, posters, tiles and jewellery come to mind. Even Royal Doulton has recently commissioned two pioneering well-known street artists to design a bold, limited edition tablewear range.

A question that people often ask me is: Can I use or adapt street art for my own purposes, such as in the design of my own creative products? The fact that street art is so accessible and can be readily photographed may make it all the more tempting to use, but this doesn’t change the fact that you still need permission. As a general rule, even if the art is on the street and free for all to see, the artist will still own copyright on it.

Let’s go back to the basics of copyright to understand how this works. In Australia, under a piece of legislation called the Copyright Act, a person who creates an artistic work generally owns the copyright unless he or she was employed or commissioned to carry out the work.

Rone’s iconic mural pictured above featured prominently in the South Australian Tourism Commission’s advertising campaign “Adelaide. Breath.”

Rone’s iconic mural pictured above featured prominently in the South Australian Tourism Commission’s advertising campaign “Adelaide. Breath.”

An artistic work is automatically protected under the Copyright Act upon its creation, regardless of artistic merit. It needs to have resulted from ‘some skill and effort’, be ‘original’ and ‘not simply copied from somewhere else’. It also needs to be ‘reduced to material form’ (i.e. not just an abstract idea but actually painted, sketched, photographed etc.).

Given the prevalence of corporations using street art in their promotional materials, it is relevant to be aware of the potential legal implications of illegal reproduction and commercial gain.

According to Copyright law, a copyright owner has the exclusive right to reproduce their work, publish it, and post it online. If someone other than the copyright owner does any of these things – even if their copy is not identical to the original artwork – then they can be in breach of copyright law.

Infringement also includes any unauthorised dealing with a ‘substantial part’ of a protected work. While what is deemed to be ‘substantial’ will depend on the facts of each case, it usually refers to the quality that was taken from the protected work rather than the quantity.

An example of a mural. Regardless of whether this artwork is legal or not, if someone appropriates this image without permission, they could be liable for copyright infringement.

An example of a mural. Regardless of whether this artwork is legal or not, if someone appropriates this image without permission, they could be liable for copyright infringement.

So in simple terms – what all this means is one thing: if you’re going to use an image of someone else’s street art – even tags or a part of a piece – always ask permission from the artist first. Otherwise, you could find yourself at the wrong end of the law resulting in a raft of consequences, such as the need to pay compensation to the artist, having to withdraw your product from the market, and more.

Example of a mural created by the street artist, Rone. This photograph has been reproduced with the artist’s permission.

Example of a mural created by the street artist, Rone. This photograph has been reproduced with the artist’s permission.

 

IMPORTANT DISCLAIMER: This article is of a general nature only and must not be relied upon as a substitute for tailored legal advice from a qualified professional.

About the author
Sharon Givoni
Sharon Givoni

Sharon Givoni is a Melbourne-based intellectual property lawyer with clients in the creative industry. She does trademark and designs work as well as contracts and copyright advice. Sharon’s book Owning It: A Creative’s Guide to Copyright, Contracts and the Law, available through Creative Minds Publishing (www.creativemindshq.com/owningit), aims to demystify the law for creative business owners. Sharon can be contacted by email (sharon@iplegal.com.au) or called on 0410 557 907 or 03 9527 1334. Her website for “Sharon Givoni Consulting” is: www.sharongivoni.com.au.