It’s the most wonderful time of the year – Art Basel in Miami Beach. This trendy affair combines some of the world’s premier art with insanely exclusive parties, incredible music events, and even national politics. While the extravagance of Art Basel momentarily dazzles the entire city, Miamians get to hangout in the more accessible and down-to-earth Wynwood Art District all year round.

Wynwood originally housed manufacturing companies who upon their departure in the 1990’s left a social and economic void in their warehouses. Revitalization began in the 2000’s, transforming the neighborhood into a well-known hotspot for food, art, fashion, innovative enterprises, and a good night out. Perhaps the most defining characteristic of Wynwood is the street art encompassing ones every perspective. The City of Miami fully supports Wynwood’s decision to sanction or commission street art and is striving to increase community involvement through this art.

For example, the RAW Project (Re-imagining the Arts in Wynwood) is a public art project initiated by a teacher at Jose D. Diego Middle School who was inspired to create a colorful and inspirational environment for the students at JDD. RAW brought a coalition of non-profit organizations, corporate partners, businesses, City agencies, artists, and musicians together to create several murals on the school’s walls, transporting the neighborhood’s artistic renaissance to the people who actually live there.

But what happens when a private entity uses a public art project for its own benefit? Vous Church, a hip and growing ministry led by celebrity pastor Rich Wilkerson Jr. (yes, the guy who married Kanye West and Kim Kardashian), rents out the JDD auditorium for its services. Vous is currently in a legal battle with the RAW artist for misappropriation after the church superimposed its logo over an image of a mural in its marketing materials. Though it may not seem like such a big deal, these promotions were put on the social media of the pop culture pastor of our generation, guaranteeing a huge level of exposure. The situation raises the question of legal protection of street art, images that were created and displayed out in the open and meant to be enjoyed by the public

Street art is entitled to protection under the Copyright Act, 17 U.S.C. §§ 101 et. seq., so long as it is an original work of authorship fixed in a tangible medium of expression. § 106 of the Act provides that authors of the copyrighted material have the exclusive right to reproduce the copyrighted work and prevent any intentional modification of that work. Even so, under the Fair Use doctrine found in § 107 of the Act, use of copyrighted material for purposes like “criticism, comment, news reporting, teaching…scholarship, or research” is not an infringement. The Act provides four factors to help determine fair use: the nature of the use, including commercial or nonprofit educational purposes; the nature of the work; the amount of copyrighted material used; and the market effect of the use.

In light of all these legal provisions, is Vous’ action an infringement of the artist’s copyright or within the realm of fair use? Pastor Wilkerson and his attorney argue that having the murals in the background of church photos is within fair use, while the artists feel like Wilkerson and the church are ripping off charity by utilizing these murals that were created for the students of JDD. The question is not an easy one to answer, which is why these types of cases typically settle out of court. Currently, the parties are trying to reach an equally beneficial arrangement.

— Patricia Patino



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