Re: compilation

On 03/31/2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 03/27/2000, David W. Quist <dquist[_at_]worldnet.att.net> wrote:
> >
> > I'm just wondering what the group's thoughts are as to the issues (if
> > any) involved in the following scenarios:
> >
> > 1. Author wants to publish an edited collection of graffiti,
> > reproducing notable examples, including sketch graffiti. Editing
> > would probably be minimal, and the graffiti may or may not be
> > "signed." Would the publication infringe on any copyrights of the
> > creators of that graffiti? (I'm not sure, but I think years ago
> > someone may have done something like this - say, "Graffiti of the
> > Ivy League"?).
>
> In theory, the photographic reproduction of the graffiti in a book
> would infringe the copyright of the artist (for any graffiti created
> on or after Jan. 1, 1978). It is difficult to imagine most graffiti
> artists registering their work and filing suit, but I suppose it is
> possible.
>
> One issue would be whether someone has a right to take a photo of
> public artwork without the artist's permission. Section 120
> expressly creates such a right for architectural works that are
> visible from a public place; but the absence of such an express right
> for other types of publicly-visible art may doom any effort to find
> an implied right. Still, I think most people would be offended by
> the notion that they can't take and publish a photo of a large outdoor
> sculpture (such as the City Hall Picasso in Chicago).
>
> > 2. Author wants to publish an edited collection of signed letters to
> > the editor. Possible infringement of the writer's copyrights?
>
> Yes. The implied right to publish the letters probably extends only
> to the customary uses of such letters: in the newspaper itself, and
> maybe any electronic versions. Republication in a book without
> permission would probably infringe, and would probably not be
> considered a fair use.
>
> > Assume no permissions in either case - in fact it might not always
> > be possible to determine the identify of the graffiti, etc., much
> > less find them. Any thoughts?
>
> I believe in Canada there is a statute that allows a person to get
> permission from the government if you have tried and been unable
> to locate the author or artist. Such a provision is badly needed
> in the U.S.

The graffiti question suddenly struck me today (perhaps I was too busy when I saw it the other day). Have we defined what we are talking about as far as their legal classification? Are graffiti public art? I thought public art was either art purchased by the state or (and?) art belonging to the state and available for public viewing (listening, whatever). My conception of graffiti is that it is private art presented for public viewing. That is, I consider there is an implied waiver of copyright in the nature of graffitti.

Now, of course, different circumstances might change my assumption. For example, graffiti gratuitously painted on private property would have the lowest claim for the artist, but would photographic copies trespass on the private property owner's rights. What if the graffiti are gratuitously painted on a public building? What if the graffitti are commissioned, that is, the mayor, in an attempt to curry favor with inner city voters, commissions graffiti artists to paint the walls of inner city buildings with ghetto themes and slogans. Maybe he just buys them the paint. When does a graffito become a 'mural'?

And what about the problem of fixation? Graffiti aren't necessarily painted with any intention of permanence. An interesting example comes to mind. Several years ago five young people were murdered in Gainesville Florida over a few days. On 34th street, at the very end of University of Florida property is a wall about a half-mile long that has long been used for graffiti, principally by U of Florida students. On this wall one day appeared the names of the five people, white letters on a black background. Over the years every part of the wall changed, painted over time after time, but no one ever touched that one small section of the wall. It had in fact become sacred. I believe the city wanted at one time to put a mural on the wall but they knew they couldn't cover that section up. There way an outcry, I think in part because the sacred section had given the wall as a whole a sacred quality. The people have made this a public gallery of graffiti. It belongs to the people because the people claimed it, the people preserve it. I hope it will always be so.

When I think of the Internet, I imagine it to be like "The Wall." We need a new Copyright Act. (Sorry if this is an abrupt nonsequitur but I got caught up in thinking about The Wall.)

Ran Pyle
Legal Studies, U. of Central Florida
<pyle[_at_]mail.ucf.edu> Received on Sun Apr 02 2000 - 18:11:12 GMT