Not everyone realizes that, like any art form that is “fixed in a tangible medium of expression”, original street art may be protected from unauthorized use under the US Copyright Act. For that reason, anyone considering using street art in commercial content must carefully evaluate whether a license is necessary and, if it is, secure a license from the copyright owner. Keep in mind that the owner of the copyright is, in many cases, the artist and not the owner of the artwork, i.e., the building owner who authorized the painting of a mural on his property. Failure to obtain a license can be costly because, like other artists, street artists are increasingly turning to litigation to protect their intellectual property rights. Not all unauthorized uses of street art are unlawful, however, and a number of potential defenses may be – and have been – asserted. We consider several of them below.
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