Did an artist need permission to depict an iconic Eagles celebration photo in this South Philly mural? It’s complicated.

Billed as a homage to Philadelphia, a freshly painted mural at South Broad Street and Castle Avenue is a patchwork of Philly pride; in one section, quarterback Jalen Hurts winds up a pass; in another, SEPTA’s Broad Street Line barrels toward the sports complex.

But when WHYY staff reporter Cory Sharber saw the mural Wednesday, one section stuck out — a recreation of an image he had shot and published for his employer.

“Huh,” Sharber wrote on X (formerly Twitter), pitting his original image side-by-side with its mural recreation.

Shot during the Eagles’ 2023 NFC championship celebration and featured in WHYY’s coverage of the victory, Sharber’s image captures several triumphant Eagles fans climbing a street sign high above crowds at City Hall.

One man flashes a deviant grin, another pumps a fist. The mural clearly depicts the same scene, save for a few notable changes.

But did the mural’s artist, Keisha Whatley, need to ask Sharber or WHYY for permission when recreating the work?

It’s complicated, Philadelphia arts and entertainment lawyer Gabrielle Sellei said, as the image raises questions over how artists can repurpose others’ work without violating the law.

Whatley, founder of the design firm Custom Arts Studio, says her reproduction of Sharber’s image was “transformative,” not a copy, making it permissible under copyright law.

“Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work,” Whately said.

Sellei is hesitant to side with either party.

“If the artist had just directly copied the photograph on the side of the building with no other context, that would be quite a bit more of a slam dunk,” said Sellei said, “as opposed to a homage to Philly, which incorporates a lot of other stuff.”

Sharber said he was not authorized to speak on the matter, but a WHYY spokesperson said in a statement that the news organization had not licensed Sharber’s image to the design firm, which was commissioned by Lancaster-based Fulton Bank to paint the mural on its Broad Street branch.

“WHYY did not license this photo to anyone but would gladly do so for no fee consideration,” said the spokesperson, who did not respond to a question about whether the outlet would consider legal action. “It would serve as a wonderful example of the many ways WHYY’s work both off air and off line adds value to our community and audiences.”

Some X users rallied behind Sharber after the photographer expressed his surprise on the platform, calling the mural “a copyright violation” and another saying the artist “should have gotten permission.”

Whatley argued that her reproduction was “fair use” under copyright law.

The legal term means that a reproduction of a creative work is exempt from some of the original’s copyright protections when appearing in a different form or context, according to Sellei, the copyright lawyer.

Sellei used a book review as an example of fair use, saying that a critic who includes an excerpt of another writer’s work is not violating copyright law.

Fair use doesn’t just apply to a reproduction that’s presented in a different context, she added, but also with different visual elements.

What does Whatley say she altered?

“We used [Sharber’s] photograph for layout and light reference, added a graphic treatment to the figures, created a surreal dripping of paint, changed facial characteristics and ethnicity, and signage to make it our own,” Whatley said.

The man climbing the pole in a hard hat has the lower half of his body removed in Whatley’s version, for example, seemingly melting away in Technicolor drips of paint.

Some parts of the men’s’ bodies are translucent, and Custom Arts Studio removed the City Hall background and changed the sign to read “South St” instead of “Penn Sq.”

The design firm also changed the skin color of the main pole climber from white to brown.

The main legal argument for the reproduction’s transformative nature is that it exists within a “homage to Philly” and is one part of a larger whole, according to Sellei.

But that point would face much deliberation in a hypothetical copyright lawsuit, the lawyer said.

A court would need to determine whether the work was a “derivative,” or a direct copy, according to Sellei, before considering the nature of the reproduction and whether the portions taken from the original image were essential to it.

“You could say here, ‘Well, [the artist] only used a portion of it, basically it’s the two guys and the pole,” Sellei said. “But, the courts will also say, ‘Yeah, but that’s the heart of it.”

Another consideration is whether the reproduction was intended for commercial use — such as, in this case, if the bank were using the mural to “burnish their image” or advertise, Sellei said. A Fulton Bank spokesperson did not respond to a request for comment.

Sellei’s recommendation for artists looking to reproduce another work is that when in doubt, secure a license before picking up a paintbrush.

“Work with a lawyer before you do your thing so you can at least be assured that what you are doing is truly transformative,” Sellei said, “and not merely derivative.”