The U.S. Court of Appeals for the Second Circuit recently confirmed that street art is, in fact, protected by copyright law. Castillo v. G&M Realty L.P (Feb. 2020). But you wouldn’t know that from looking at Instagram. In recent years, the social media explosion has transformed “aerosol art” from a nuisance to a promotional tool. What used to be painted over the next morning, can now garner attention for a location and lead to flocks of social media junkies posing for and posting pics, leaving local shop owners hoping the foot traffic will increase sales. Many shop owners have gone so far as to commission works on their facades precisely with this in mind. The easiest way to lure in the Instagram-generation to your store is to have something unique that they can post in the hopes of adding followers. For many of these Kardashian wannabes, the goal is to build their “brand” so they can get sponsorship deals and rake in free goods and cash. A new sub-economy is exploding but, not surprisingly, few stop to consider the legal implications.
Applying these copyright principles to the hypothetical Emma and other social influencers, it is clear that they are blissfully unaware of the lurking dangers. Unauthorized uses of others’ copyrightable works in unsponsored posts will likely be tolerated due to changing attitudes about such uses and the motivations behind street art. However, when it comes to sponsored posts, social influencers should beware. While the Instagram generation may not think traditional copyright law applies to their posts, it does, and the Second Circuit recently made clear that street art, despite its temporary nature, is protected by copyright. As the social influencer industry grows and becomes even more lucrative, so grows the threat of claims arising out of unauthorized uses of street and other publicly displayed art.