Stirred by a recent Swedish court ruling, the debate regarding public art and copyright law is heating up. What is considered public art? Public art, in this sense, is art created specifically for a public space, such as a park or a government building. Sometimes, government agencies are both contracting and paying the artists through percent-for-art programs, as we’ve reviewed here before. Since these pieces are inherently accessible, often displayed in a setting that far transcends the traditional museum model, the works seem to invite viewers to interact: take a selfie, post a photo to Instagram, perhaps even use as inspiration of your own. But is distributing public art through your online channels a violation of copyright law? If an agency hires an artist to create a public artwork, does a work-for-hire relationship exist? If we allow everyday citizens to distribute copyrighted material, what is the incentive for an artist in making public art? Who owns the copyright in public art?
The Supreme Court of Sweden seems to think it’s the artist, and the artist alone, that holds the copyright in a public artwork. Recently, the court considered whether Wikimedia Sweden was violating the country’s copyright laws by gathering and posting photographs of public artworks on its website. In most cases, the photo would be accompanied by some information on the work, such as its location, name, and the artist who created it. All of the photos were uploaded by Wikimedia users, for non-commercial use.
In June 2014, the Visual Arts Copyright Society in Sweden, which represents visual artists across the country, filed a lawsuit against Wikimedia Sweden, claiming that the website had infringed on the copyright protections of artists since the photos were posted without express permission from the artists in question. Wikimedia said that Swedish copyright law does allow its citizens to take photos of public works of art, and that distribution online is consistent with European copyright laws. Despite the fact that photos of the work were a reproduction of public artwork, VACSS argued that Swedish law does not recognize such practices as legal – mainly because the issue had never been decided. As such, both parties agreed to take the issue to the Supreme Court so that they could decide this complex and never-before-heard issue.
Sweden’s highest court chose to protect its artists
The court noted that because the public works were being displayed in a database, there was the possibility of a commercial use for it – think city tours for travelers, for example. The fact that Wikimedia didn’t have an inherent commercial purpose for posting the works online was irrelevant to the court. While this may seem like a win for copyright holders, at the same time it does seem ridiculous – in theory, this means that anyone is Europe who wishes to post photos of a public artwork must first get permission from the artist, even if their sole purpose is to post photos on Facebook for their friends to see.
Is Sweden’s interpretation of copyright law correct? How would U.S. copyright laws require us to view this situation?
Under U.S. Copyright Law, Does the Government Own the Copyright?
It’s unlikely that the U.S. would adopt Sweden’s ruling in this case since it’s such a strict interpretation of copyright laws. On the one hand, Sweden’s ruling unequivocally protects the artist’s earning power for his work, but at the same time creates a near-implausible scenario that would be tough to enforce. Plus, would artists commissioned for public works truly wish the public be limited from taking pictures of the work? Isn’t that the purpose of creating a public work?
So who would own the copyright in a public work in the U.S., and thereby hold the exclusive right to copy, redistribute, or reproduce the work? The answer is determined by the terms of the contract.
Technically speaking, a public art project could be considered a work-for-hire situation depending on the structure of the agreement.
Under work-for-hire provisions in copyright law, employees forfeit their copyrights in work they create throughout the course of their employment. Meaning that, a photographer employed at an ad agency doesn’t hold the copyright to any of the photos he takes for ads or other promotional materials associated with his work. Additionally, even though an artist may not be considered an employee in the strictest sense, being hired for a project could have work-for-hire implications. In our case, the artist hired for a public art project wouldn’t be considered an employee of the government in the strictest sense – an analysis would require a review of the work-for-hire guidelines.
As we’ve outlined in our copyright e-book, The Law of Creativity, the government would hold the copyright in the public art project if there were:
- A written agreement signed by both parties;
- that specifically states that the work is a “work-made-for-hire;”
- and, the work must be one of these nine types:
- a contribution to a collective work,
- part of a motion picture or other audiovisual work,
- a translation,
- a supplementary work,
- a compilation,
- an instructional text,
- a test,
- material for a test,
- or an atlas.
Many visual artist works will often fall under “compilation.” Compilations (also known as “collective works”) are copyrightable if the materials are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes a new work. For example, a graphic designer may create pieces of what eventually ends up in an ad, poster or website. On the other hand, photography may be considered a contribution to a collective work, such as when a photo is part of a catalog or magazine.
Fine art, especially public artwork, may not fall into any of these categories since fine art pieces are usually created to stand alone, and not part of a larger work. Thus, a public art project would only be considered the copyright of the government if the contract between agency and artist specifically states as such, and the artist’s work has some repeatable, reproducible aspect to it. However, it’s unlikely that this would occur – in most cases, the artist will hold copyright in the work with the government having merely a license to use the work.
Other Considerations for Artists Creating Public Works
We’ve briefly covered the way street artists or artists who make public works can defend their rights to the work via the Visual Artists Rights Act, which affords works of art that meet certain requirements, regardless of any subsequent physical ownership of the work itself, or regardless of who holds the copyright to the work. Instead, VARA grants copyright holders in artworks these exclusive rights:
- right to claim authorship
- right to prevent the use of one’s name on any work the author did not create
- right to prevent the use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation
- right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation
Meaning that, an artist under VARA would have the opportunity to defend their work from being destroyed or moved, but they wouldn’t necessarily have the opportunity to prevent online distribution of their work from third parties. In public art projects or street art projects, artists might invoke VARA in order to keep the work from being covered up or moved if a new owner takes hold of the public space.
What about Fair Use?
So how would a U.S. court decide the issue presented before the Swedish court? The court would likely apply a fair use test to determine whether the posting online of an image of public art is considered copyright infringement. As a reminder, fair use can defend against claims of copyright infringement based on four factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; will constitute fair use if you’re using the image for purposes of commentary, criticism, reporting, or teaching.
- the nature of the copyrighted work; will need to show that use of the photo had an educational or critical purpose for illustrating a principle.
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; will generally hinge on the overall amount of appropriated content contained in the work;
- the effect of the use upon the potential market for or value of the copyrighted work; whether the loss to the copyright holder will outweigh the public benefit
Unlike the Swedish court, a U.S. court would probably decline to offer a bright-line rule for dealing with online user postings of public artworks. Decided on a case-by-case basis, a court might consider an instance of posting a selfie with a public artwork in the background fair use since there would be little effect on the artist’s ability to profit from his work – after all, a public artwork lacks any inherent capacity for profit.
Do you agree with the Swedish court’s ruling? Is it copyright infringement to post a photo online of a public artwork?
The purpose of copyright is to protect the market for the artist’s work, so it’s important to consider what that market is, and whether a photo of that art invades that market and damage’s the artist’s ability to profit from his work. I would argue, for instance, a large public sculpture occupies the market for large public sculptures. Anyone trying to sell sculptural knock-offs of the piece would be invading the artist’s market for his work. But a photo–especially a selfie in front of a sculpture–is not invading that market. A photo is not a sculpture. And a selfie is as much an image of the person taking it as it is of the sculpture. In the final analysis, the selfie does no damage to the artist’s market for his or her sculpture, and if anything, only improves it by making the sculpture’s image better known. So I would find no violation of copyright.
It’s pretty simple in my opinion, a work of public art becomes part of the landscape. If a photographer includes such an artwork in a view of the landscape, they are simply capturing an image of a public space. Does the company that produced the decorative base on a street lamp have the right to sue over this photo? How about the designer of the purse held by the passerby? The landscaper who planted the tulips in zig-zag patterns? If, however, the photo is cropped so tightly as to show the artwork without context, then it may become an issue of an unlicensed “reproduction.” I have had a few works of public art and I have no problem with, and in fact much to gain from photos of them in context.
Hello Nicole, thank you so much for the article and insight on this matter. I have a question for you and your team: I am a photographer and I have some images and compositions taken using Wynwood backgrounds and street art. I am considering marketing these images using services such as those offered by Society6.com, where you find numerous artists and photographers such as myself marketing their work on prints, t-shirts, pillows, tote bags, coffee cups and others. Would this be an infringement of copyright for the work done by the street artists reflected on those images? Thank you.