Basic copyright issues in outdoor mural projects

One of the most urgent questions our clients have for us at the beginning of a project is ownership. Next to cost, this is perhaps the most immediate concern. Other questions that seem unrelated—how long should I keep the mural up? Are people allowed to photograph it? Can I invite another artist to change it?—also come back to the basic question of ownership.

An original work of art, according to US copyright laws, by default belongs to the artist. That means that even though Joe is a building owner, and the bricks of the wall are indeed his property, the image that was painted on Joe’s wall, by Susan, is Susan’s and hers alone.

However, this raises some questions.

Q. What if Joe and Susan agree that by paying for the mural, it’s OK with Susan for Joe to own the mural image outright?
A: No problem, this simply means that Joe (the building owner) and Susan (the artist) will make sure that in the contract they sign, it is clearly stated that copyright will go to the building owner.

Q. What if the building owner wants to demolish the wall? It’s his wall.
A: Depends. If Joe owns the copyright to the mural, then it’s no problem. If the copyright stays with Susan the artist, then Joe simply has a license to enjoy the work on his wall. It remains unsettled in the law whether Joe can demolish the wall if the art is Susan’s. Parties should discuss their expectations… in other words, talk about it! Decide what you think is reasonable, and put it in your contract.

Q. Can Joe sell T-shirts with pictures of the mural on it to promote his business?
A. Well that depends on whether Joe and Susan agreed upon copyright transfer. If they did not talk about it, then copyright could still remain with Susan and she could sue Joe for profiting from an image that she created. Even if they did transfer copyright, both Joe and Susan should be wary of outside folks doing the same thing.

Q: Is it copyright infringement if people take pics of the mural and post it on social media?
A: No issue. Personal photos and journalistic photos are OK.

Q: Can a third party do a photo shoot that includes Susan’s mural, and then print a catalog of fashions that utilize the mural to help sell their product? After all, the mural was part of the streetscape, right?
A. Wrong. Just because something is in the public eye, does not mean it’s in the public domain. See this case in which the retail store American Eagle tried to pull this trick on the artist David Anasagasti, whose case of copyright infringement was legitimate. The parties reached a settlement out of court.

Q: Can I ask my muralist to paint a picture of Spiderman, or Barbie, or Spongebob?
A: No no no no no no no no no! In fact you need to take extra care to insist to your artist that he or she make work that they can guarantee is 100% original.

Remember guys: I’m not a lawyer… get your own legal advice! But don’t be surprised when many mainstream lawyers also don’t know the emerging issues here. Your best bet is to have a really honest chat with your artist about his or her expectations, and yours, and agree to terms that feel good to both of you.

Phillip Pessar