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Does photographing street art violate the street artist’s copyright?
Under U.S. copyright law, the violation of a copyright owner’s exclusive rights occurs when an infringer copies and/or creates a “derivative work” that is a copy or “substantially similar” to the copyright owner’s work. Thus, taking the photograph of a colorful mural alone, for the specific purpose of making a copy of the mural itself, may violate the mural artist’s copyright, especially if the image is then sold by the photographer for a commercial purpose (such as an advertisement). However, professional photographers often use street art as a backdrop to their projects or photograph the mural together with other elements, and creatively use lighting and composition to create something that is more unique and thus “original” to the photographer. In such cases, a defense known as “fair use” may apply. Unfortunately, though, there is currently no way to definitively measure when infringement ends and a new work begins.
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