ARTIST NOTE: For artwork on public display: While people cannot copy your work, creating work that includes the public display in the background is permissable.

REAL LIFE EXAMPLE (From the Hollywood Reporter): Mural artist, Maya Hayuk, sues because she believed a music video infringed on her copyright. The Brooklyn-based artist, Hayuk, filed a lawsuit that raised the question of whether the mise-en-scène from one video production could be appropriated in another. Artist Elle Varner's music video "I Only Wanna Give It To You" featured numerous scenes with Hayuk's mural in the background.

QUESTION: Can a mural on dispay in a public space claim infringement if filmed and photographed as a part of a different piece taking place in its proximity?

Congress, through the Architectural Works Copyright Protection Act (“AWCPA”), Pub. L. No. 101-650, 104 Stat. 5133 (1990), extended copyright protection to architectural works. A limitation on such copyright protection was codified in 17 U.S.C. § 120, which states that copyright protection in an architectural work “does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”

The Copyright Office defines “buildings” as permanent and stationary structures designed for human occupancy: "humanly habitable structures that are intended to be both permanent and stationary, such as houses and offices, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions." Because this mural is ordinarily visible from a public place and has been fixed to the side of a building, the artists who use the mural in the background of their video has a strong affirmative defense under the AWCPA.