Supreme Court Justice Oliver Wendell Holmes once famously defined obscenity as “you know it when I see it.”
This was later clarified to try to find that fine line between something someone may enjoy seeing, and someone may find offensive.
A similar boundary exists with graffiti, when a property owner may see it as willful destruction of their property, while artists may see it expressing themselves creatively.
Context and quality also help – the minimal tagging of initials may be easier to define as “not art” compared to the grayer area of a colorful mural.
The role of a photographer trying to shoot graffiti is also uncertain. If you’re taking a photo to document vandalism for the authorities, it’s a different situation than if you were trying to capture a wonderful temporary artistic creation.
You might even potentially be charged with the same criminal offenses as the artist. In the eyes of the law, you may be an accessory if you don’t try to stop the artists, or even are aware of their identity.
That’s what happened to pro photographer Jonas Lara, who was arrested in 2010 while taking photos of two people creating a graffiti mural in Los Angeles. The original charge was felony vandalism, which was later changed to misdemeanor vandalism, then aiding and abetting, then disturbing the peace, before it was dismissed.
Laws against graffiti vary by municipality and country – places like Russia and Japan seem less tolerant of “street art,” partially because it sometimes is seen as spreading subversive messages.
Another sticky area, at least where art is concerned, is who owns the rights to a particular street image. If a photographer takes and sells a beautiful photo of a beautiful piece of street art, does the photographer need to get permission from the artist first or pay for its use?
Generally, the answer is “probably,” although the law is still evolving. Some artists have begun not only including their signature in a piece but registering it as their original copyrighted work, which means they can challenge unauthorized use in court.
Advocates of artistic freedom sometimes claim that a street image that catches a photographer’s eye can be perceived as being in the public domain, since it’s not in a gallery or private artist’s studio. If a photographer includes other elements in the image, they can also be seen as re-interpreting it under fair use laws.
All images copyright Robyn Porteen – Editorial Use OnlyAdd a comment