Ok friends, this one is tricky, but not because the law is vague. It’s a common misconception that something in the public space is “public domain” – meaning that just because it’s freely and easily accessible, it’s wide open for anyone to use however they like, but this isn’t true.
The fact is, while some works (notably sculptures installed permanently) are exempted from Copyright law, your street art still falls under the protection of the Copyright Act 1994, from the moment it exists, so anyone making a copy of it, needs your permission and to attribute you correctly.
Of course, tourists aren’t aware of this, and most street artists expect and are happy to have their work admired, snapped, and posted on social media, especially when they are tagged correctly. There’s an unspoken social agreement that work in a visible and public space is ok to take a photo of. But when another party starts to make money off your work – a calendar, the background of a commercial, a t-shirt, a postcard - or if your work is being used to promote some misaligned message... that’s when an artist can and should get fired up.
Not only is it unfair that someone else is profiting off the work of the artist, regardless of whether there’s commercial gain, any copying is technically copyright infringement. The generosity of street artists in sharing their work with the public shouldn’t result in anonymity and the denial of financial potential for their work; after all, who can pay the bills with “credit and exposure?”
Complicating things, sometimes ownership of copyright is not clear, and an artist may believe they own the rights to the work, when in fact, they do not. Commissions are not always paid for with money; sometimes it's materials, expenses, airfare, or other intangibles, and that can make it difficult to determine the rightful owner. In general, if the street artist has been commissioned to work in that space, then, by law, whoever commissioned the work owns the copyright, and they are legally able to copy and use the work however they want.
You can protect yourself as an artist, by always having a contract. Make sure that you retain your legal and moral rights by having that in writing, no matter whether you are doing a paid or unpaid gig. You can also paint “© Name. Date.” somewhere on all of your work, so that it’s clear who to contact when seeking permission to use your work, and keep your website updated so you can respond to queries. You should also build a catalogue of your work, and, where possible, register with us for extra support and protection of your rights
Are you interested in finding out how copyright applies to you?
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Quick links:
https://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345930.html
https://www.badexposure.co.nz/
Written by Karen Workman, Kaiwhakahaere Whakapa | Creative Rights Educator