Street art by artists Gauche and Praxis in the Bushwick area of Brooklyn, New York. 08 August 2017. (Photo: Adam Gray / Barcroft Media via Getty Images)
Street art by artists Gauche and Praxis in the Bushwick area of Brooklyn, New York. 08 August 2017. (Photo: Adam Gray / Barcroft Media via Getty Images)

SocietyMarch 10, 2020

Who owns the art on the street?

Street art by artists Gauche and Praxis in the Bushwick area of Brooklyn, New York. 08 August 2017. (Photo: Adam Gray / Barcroft Media via Getty Images)
Street art by artists Gauche and Praxis in the Bushwick area of Brooklyn, New York. 08 August 2017. (Photo: Adam Gray / Barcroft Media via Getty Images)

You wouldn’t use the riff from ‘Slice of Heaven’ to spruik your products without permission, so why is visual art any different? Catherine Jeffcoat looks at a recent initiative to let street artists know about their copyright protections and comes up with some useful tips for the communications profession. 

Maybe you work in a small communications team, strapped for cash and for time, under pressure to come up with an illustration for your annual report or social media. What are the options?

  1. Stock photos: can be horribly generic, and of course can be used by anyone. Even NZ-specific stock photos come with their own pitfalls, as Treasury can testify
  2. Commissioning your own photos or illustrations? Out of the question on a tight deadline and budget.
  3. But… there’s a fantastic mural on the wall down the road. Whip out and take a photo on your iPhone – job done! Or is it?

It’s so tempting to DIY your images, but here’s why you should think first and shoot later.

That piece of street art didn’t just appear, someone made it

And as such, copyright applies.

I can hear the argument now: “But it’s in a public place…”

Would you take a photo of an artwork in a museum or gallery and use it to illustrate your content? Presumably not. So how is street art different?

We fall into the trap of thinking that street art is part of the urban landscape. It’s been put there for the public to enjoy, including taking photos. As artist Xoë Hall and IP lawyer and arts advocate Tom Huthwaite make clear on their website Bad Exposure, there is a specific exemption for buildings and permanent sculptures where they are not protected by copyright – but this does not include 2D paintings or other visual art.

Legally the artist is the only one who can issue copies or otherwise communicate the work. What’s more, they have a moral right to be identified as the author of the work.

So even if you download a photo of street art from an online image library, as well as crediting the photographer, you will want to credit the artist.

Watch your street cred

Street art is speaking a particular language – and your youth audience is fluent in it. They will want to know who the artist is, and where their roots are. If how you are using the image is in direct conflict with the kaupapa of the art, do you really want to hear about it on social media from your customers, or even worse, from the artist themselves?

A mural of a weka on Rotoroa Island near Auckland. Artists: Summer and Wendy Hodder, image supplied

Forget about the price tag

Art hanging on the wall of a gallery or museum has an implied value. Someone paid money to acquire it, and some museums permit photography for personal use – but most explicitly prohibit commercial reproduction.

Street art always has a value in terms of the creative effort that the artist has put in, as well as any fee paid for the art work to be created.

Xoë Hall has done a great job of raising the profile of these issues to Stuff reporter Nikki McDonald, but I wanted to know about best practice for marketers and comms people who are thinking about using street art in their content.

Caroline Stone is the visual arts advisor at Copyright Licensing New Zealand, with a background in law and visual arts. She thinks that most artists don’t have a problem with their work appearing on social media.

“[But] when it’s taken and used for a commercial purpose there becomes a problem. It’s tying the artist to that commercial entity, which maybe the artist is happy with, or maybe they’re not. But that right which is exclusively given to them under the Copyright Act has been taken away, and they’re no longer given the opportunity to decide to control their own moral right and or copyright.

“It’s always a lot better to negotiate the terms of a contract before you make the usage rather than afterwards.”

For a good example of how to do this, take a walk along Richmond Road in Auckland. On a garage door, someone has painted a copy of Ruby Jones’ famous image of two women hugging that went around the world following the Christchurch attacks. At the bottom is a note: “Painted with permission of the artist”.

Illustration by Ruby Jones (left) / a South Auckland school’s mural based on a sketch by artist Isaac Westerlund

How great would it be if we fostered the visual arts in Aotearoa by making sure artists decide who gets to use their work – and are rewarded every time their work is used? Here’s what we can do.

Find the artist

Look closely – have they signed the work? In an urban environment, there may be a record online of specific works. Start with city council websites.

Most artists should have a website or be on social media. Try the building owner if you’re having trouble.

Ask for permission

Let them know what your organisation is about and how you propose to use the image.

As Xoë Hall says, “We won’t bite. Give us an opportunity to decide if we want to align ourselves with you and your brand/idea. A choice. To see if it’s right for us, something we want to not only back, but attach our identity to.”

Be prepared to negotiate

It is the artist’s right to determine what any fee should be, taking into account where you intend to use it (ie digital/ print/ broadcast etc), purpose (editorial/ advertising), time period for use (one time only, a month, a year, forever, etc)

Copyright Licensing New Zealand’s new service can help the artists figure out what an appropriate fee might be.

I know, budgets are still tight. But as Stone says, visual arts are “undervalued across the board…. But the communication wouldn’t be anything without the image”.

As the financial year-end rolls around, is there some unspent cast in the kitty? Have a chat to some artists or to Copyright Licensing now and start a wishlist of images.

With any luck, this article will give you some ammunition to make a business case for more funding next year. Supporting a vibrant cultural life in Aotearoa, much like supporting media, is something we can all play a part in.

Acknowledge the artist 

Every time you use the work, as closely to the work as possible. So if you publish an article online, include a caption immediately below the image, or embed text in the image (and don’t forget alt-text for accessibility). On social media, include an acknowledgement in the post, and consider a brief image description as well.

I know this all involves a bit of detective work, a bit of dosh, and a few more clicks on the upload side. But it’s all worth it to know you’re doing the right thing, both by copyright law and especially by the artists you are helping.

Take it to the next level 

Wouldn’t it be great if there was a database of street art that you could search, to find out who the artist was for a piece of work, request permission and pay them?

While we wait for some hero to create that, remember that New Zealand is a village – so consider building relationships with local artists. Commission a specific work of art for your organisation. Or better yet, ask them for their perspective on your work.

Street artists often create art in direct response to social or environmental issues, so in the same way you might partner with an iwi or NGO, invite them on board to collaborate on the substance of your work and how you interact with your community. Valuable new perspectives will open up to you, and that image on your social media will take on a much greater significance.

As Xoë Hall puts it, “When you have the money, and we the artist have a voice, and we put all that power together for a message we both believe in, it will be seen.”

Keep going!