Roy B. Oser, Esq.

Here's an idea -- Roam the streets of, say, New York City, with a camera, taking pictures of graffiti-covered surfaces, for over ten years. Assemble these pictures in a glossy coffee table book, with a catchy title, perhaps "Tatooed Walls." Then, publish and prosper, ride the talk show circuit, build a summer home on the Cape . . . . Hold on. There may be some obstacles on your road to the beach.

According to a recent article in The New York Times ("Walls of Art for Everyone, but Made by Not Just Anyone," June 4, 2007), a periodontist and photographer named Peter Rosenstein has already published a book with that title, containing photographs that he took of graffiti over a ten-year period. He included in the book his photographs of work by a group that calls itself Tats Cru and that was painted on a rooftop in the Hunts Point section of the Bronx, one of the five boroughs of New York City. (The article doesn't say if Dr. Rosenstein took the photographs from a helicopter.)

Better find a new title. Better yet, before you publish your book, talk it over with a lawyer. The Times article reports that Tats Cru has joined a dozen other artists whose works are pictured in Dr. Rosenstein's book to seek a settlement for what they claim is copyright infringement. Under the federal copyright law, artists have rights regarding the use of their works. If you want to protect yourself against being sued for copyright infringement, better ask the artists' permission before you put reproductions of their work (or their writings) in a book. Let's hope that you can find them to ask.

It appears that Dr. Rosenstein is claiming that the photographs of the artists' works in his book constitute "fair use," an exception to copyright protection. The fair use exception is one of the most difficult areas of the copyright law to pin down with any precision.

The first thing to ascertain is what sort of works are entitled to copyright protection under the federal law. The answer is simple, or appears to be, and is found in Section 102 of the United States Code:

(a) Copyright protection subsists, in accordance with [the copyright law], in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
1. (1) literary works;
2. (2) musical works, including any accompanying words;
3. (3) dramatic works, including any accompanying music;
4. (4) pantomimes and choreographic works;
5. (5) pictorial, graphic, and sculptural works;
6. (6) motion pictures and other audio visiual works;
7. (7) sound recordings; and
8. (8) architectual works.
   (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such a work.

Well, Tats Cru seems to have a good argument, so far, that their "pictorial" or "graphic" works are entitled to copyright protection. But let's look at the fair use exception, in the federal copyright law in Section 107 of the United States Code:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
1. (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. (2) the nature of the copyrighted work;
3. (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. (4) the effect of the use upon the potential market for or value of the copyrighted work.

In a holding perhaps not obvious from this statute, the United States Supreme Court concluded in 1994, in Campbell v. Acuff-Rose Music, Inc., that the fair use exception applies to parody. The Campbell case involved a commercial parody by 2 Live Crew of Roy Orbison's song, "Oh Pretty Woman." This ruling was no doubt good news for many comedians and television producers, but seems unlikely to be of any help to Dr. Rosenstein, whose book "Tatooed Walls," as described in the Times, does not appear to be a parody.

The Campbell opinion also contains this insightful and more general comment on fair use by Justice David Souter that may shed some light on whether books like "Tatooed Walls" infringe on the copyrights of the artists whose work is depicted:

The central purpose of [the] investigation [of the purpose and character of the use is] whether the new work merely supersedes the objects of the original creation, supplanting the original, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

So the main question for photographers like Dr. Rosenstein may be, "Did you add something new?" And by the way, if you want to quote the federal copyright law or Justice Souter, as I have, you'll be glad to know that copyright protection is generally not available to work of the United States government. But it is available to my comments. So don't quote me -- except for purposes such as criticism, comment, news reporting, teaching, scholarship, research, or parody. And go easy on the parody -- it may be legal, but I do have feelings!

Roy B. Oser practices law in New York and New Jersey.