Even the most novice style blogger knows that in the perfect Instagram shot, nailing the outfit is only half the battle. Requisite, too, is the right backdrop so that your carefully curated clothes pop.
Social media’s biggest fashion “influencers” often look for a dynamic graffiti wall to pose in front of, but what they may not realize is that their Instagram shots could land them in legal trouble.
“If an influencer takes a photo that contains another party’s copyright protected work, she is making a reproduction and that is a copyright violation (absent any viable fair use claims), regardless of whether or not he/she profits from that photo,” explains Julie Zerbo, editor in chief of the Fashion Law. “It is worth noting, though, that if the influencer does, in fact, profit from the post, the copyright owner of the original work may claim damages in connection therewith.”
It may seem odd that a mural in a public space (i.e., a graffiti wall) is subject to copyright law, but it turns out that any legally done artwork that is commissioned, say by a city or property owner, is protected.
In 2012, the city of Hollywood, Fla., commissioned a series of public art by local graffiti artists, calling it the Downtown Hollywood Mural Project. The project, which features more than 20 murals throughout the downtown area, is a source of tourism for the small municipality and a source of publicity for the artists involved.
A post shared by mayahayuk (@mayahayuk) on Nov 30, 2013 at 11:57am PST
But some artists who have been involved with the project and neighboring mural projects in Miami (a hotbed for local street artists) have had their work misused for commercial purposes without their permission, including by retail brands that have profited from the ripoffs.
For example, American Eagle attempted to recreate work by artist David Anasagasti, aka Ahol Sniffs Glue, in a major advertising campaign online and across billboards. Anasagasti sued American Eagle in 2014, and the two parties resolved the legal battle by reaching an undisclosed settlement.
That wouldn’t be the first or last case of copyright infringement to face a fashion brand. As the Fashion Law points out, Coach was sued by artist Maya Hayuk, whose graffiti work is well-known among artists in downtown Manhattan. And Hayuk is among the most tenacious when it comes to protecting her work, also pursuing legal action against Urban Outfitters, the musician Sara Bareilles, and Starbucks; she says they have all used her work without permission.
To be sure, there are some brands that approach the use of street art sensibly. DKNY, for example, commissioned its own street art for a 2017 “Find Bella Hadid” campaign in New York City, one the brand hoped would attract young millennial shoppers and prolific Instagram users.
CONTEST CLOSED, WINNER HAS BEEN CONTACTED | The search starts now. LOCATION: [1 OF 6], 234 Eldridge Street (off Houston) The new #DKNY Spring 2017 Campaign, starring @BellaHadid, is hidden in six spots around New York City for a one-day-only search. Find all six for your chance to win a meet and greet with Bella, and a DKNY Spring 2017 wardrobe valued at $4500. Want to win? Follow @DKNY all day on Instagram to discover the locations. Visit each city spot and post a photo on Instagram, tagging #FindBellaDKNY and @DKNY. The winner will be selected and contacted via DM on 1/31. #DKNYSS17 See rules: http://bit.ly/FindBellaDKNY
A post shared by DKNY (@dkny) on Jan 29, 2017 at 4:31am PST
While social media may compound the copyright infringement problem, it also helps artists keep an eye out for misuse. Instagram users technically own the photos and videos they post, but if they’re using another artist’s work in a post from which they might profit they could be setting themselves up for a legal fight against artists like Hayuk.
Instagram did not provide data for how frequently copyright infringement happens on its platform, but a spokesperson told Yahoo Style in an email: “Instagram takes intellectual property rights seriously and we work quickly to remove infringing images when they’re reported by the person or organization who owns the rights. If a rights holder sees their image being improperly used on Instagram, they can file a complaint and we will promptly evaluate and take the appropriate action.”
It’s difficult to pinpoint how frequently this happens, and there’s little data surrounding how much artists stand to lose from the matter. In the complaints Hayuk filed against Starbucks and Coach, she sought $150,000 in damages each. But depending on how much is at stake for the artists — or how big the infringing party is — legal action may not be worth it. That’s especially true when an artist hasn’t filed for copyright protection.
Douglas Hoekzema, a 37-year-old full-time artist who goes by the name HOXXOH, has completed dozens of murals for festivals and real estate developers, and said the pay ranges anywhere from $2,000 to $60,000, depending on the scale. That compares to an influencer who might make $10,000 from a single Instagram post.
Hoekzema said he hasn’t copyrighted his work, but is protected by the Creative Commons. He also said his talent agency’s legal team is at his disposal. Still, he isn’t eager to sue those who rip off his work.
“I could get more people interested in my work if [fashion bloggers] did the respectful thing of giving credit where it’s due,” Hoekzema said. “But everyone is suit-hungry. It’s a mess, it’s ugly, and it’s a waste of energy no matter how much you get paid [if you win].”
So what are best practices when it comes to those coveted Instagram shots? Regardless of whether you’re an influencer being paid for your posts, you should always tag an artist if a signature is identifiable in the bottom corner of a mural, said Jill Weisberg, project manager for the Downtown Hollywood Mural Project.
“I do try very hard to credit artists when I am photographing. I feel that it helps give me credibility, and it also makes it easier for other people to find out more information about the artist,” Weisberg said. “This is exactly what I would want to happen when people photograph my work.”
Read more from Yahoo Style + Beauty:
Alexandra Mondalek is a writer for Yahoo Style + Beauty. Follow her on Twitter @amondalek.