Layers
Copyright and Photos or Art, and Art of Photos, and So On...
by
Cindy Hill, Esq. for Fine Art Registry™
I take a photograph of a flower.
Later, I walk down a city street. A building catches my eye, designed by a famous architect. I take shots of the pigeons on the ledges, the reflections in plate glass windows, which include an image of a decorative fountain in the courtyard, bubbled and distorted in the large mirrored images. (This is my favorite genre – I take black and white photos of little architectural details, much to the frustration of friends and relatives who want to see vacations snapshots of, say, Spain, and get handed a stack of photographs of pendils, balustrades, and corbeled arches.)
Next, I take a photograph of a painting. A modern painting perhaps – one I see at a gallery that I’m considering buying. Or perhaps it’s not a new painting. Maybe it’s a photo of a painting of a soup can, where the corporate graphics designer already owns the copyright to the soup can design and the painter already owns the copyright to his painting of the soup can. Can I trump them all with my lens?
In fact, why go through all the trouble of buying all those lenses and waiting for just the right light... what happens if I just take a carefully framed digital photo of an Ansel Adams black and white, and assert my copyright on that? Like the bluegrass song says, why should I have to work so hard, when I can live off the chickens in my neighbor’s yard?
Each of these scenarios gives rise to layers of legal interests. Yet, in most cases, these rights can be parsed out with the use of common sense applied with a liberal dose of patience. We start with the simple case: my photo of a flower.
My photograph is a creative work, reduced to a tangible medium, (be it film or pixels). Thus, from its creation, I hold the legal copyright. I composed and framed the image in my mind: While there are a thousand – probably a billion – photos of flowers out there, I picked this particular flower as well as its lighting, setting, the depth of field, the color saturation in the print, whether to knock the dew drops off or not, whether to wait for a bee to land. Despite capturing a real-life image, photography does hold countless myriad little creative decisions between the shutter button and the picture, and thus is a created work.
However, no matter how good I am, I can’t hold the copyright to the flower, anymore than I could hold the copyright to a circle, or the letter “A” (hey, that’d be a way to get rich, huh?). I can not preclude other people from making photos or images of flowers, or growing flowers, and just because next year’s Sierra Club calendar might have a picture of a meadow of daisies on it doesn’t mean they violated my copyright because I took a picture of a daisy first. I can, however, preclude people from duplicating my precise photograph, such as lifting it off my website or color-copying it onto notecards and posters. (At least, I can legally preclude it – physically stopping image theft with digital images is very difficult, and an artist posting images on the web or even in printed catalogs would be wise to ensure that a watermark and embedded information appear with it at all times declaring the copyright and any licensing terms.) That’s just plain common sense, distinguishing between what I own – the creative elements attributed to me – and what is in the public domain.
Regarding those buildings I love the shoot, the 1990 Architectural Works Copyright Protection Act specifically permits me to take pictures or make paintings of the public portions of a building without running afoul of the architect’s copyright, stating:
- (a) Pictorial representations permitted. The copyright in an architectural work that has been constructed 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.
This is another injection of common sense into copyright law. Daily life, news reports, and public creativity generally would likely be stifled if all persons taking photographs in Manhattan had to pay a copyright licensing fee to the architects of the Empire State Building and Chrysler Building, for example.
As to the copyright holder of that decorative fountain that appears, in convoluted form, in my photo of reflections in the building, things get rather tricky. The fountain is likely to be considered sculpture, or fine art, rather than architecture; however, it’s placement in a public place, and in fact it’s intentional design as a focal point of human interaction, would seem to anticipate incidental photography as part of the rights conveyed to the public domain by its placement. But does my photo of its distorted reflection demean or diminish the design, thereby implicating its designer’s moral rights? Since I have chosen an altered image of the fountain to include in my photo, courts are likely to think about this question in the same way they do the inclusion of fractured bits of images in mosaics or composite images – a hot topic of much legal debate and controversy at present. In short, there is no settled answer on this point.
Finally, we face the issue of a photo of a painting, or of another photograph. If the copyright of the original work is still valid, the copyright holder – the artist, or whomever the artist conveyed copyright to – could preclude photographs from being taken of the work, other than for ‘fair uses’ as listed in the Copyright Act, because they are either duplications or derivative works. As a simple matter of common sense, it is doubtful that a court would award damages for a copyright violation for minor personal infringements such as the title owner of a painting taking snapshots of the work for purposes of keeping accurate insurance records – and a copyright holder who would sue a gallery for copyright infringement for photographing a painting they were trying to sell would just be shooting themselves in the foot, anyway. (Although, if it were me, my gallery agreement would preclude gallery patrons from photographing the works, and would require that I approve any photos that the gallery utilized in their advertisements and catalogs – the reason being that many people take lousy pictures, and I would not want an advertisement with a distorted photo of my work in it, nor would I want a gallery customer to run home and put a photo of my painting up on their blog with a note saying ‘can you believe how much this person is asking for this’ or any other use that might demean my works.)
However, copyright belongs to the artist, and it is up to the original artist, or whomever the copyright has transferred to, to decide what he or she feels comfortable with permitting for photography or other duplication, and putting that into writing in a sales or gallery display agreement – an undertaking made easier if the artist first registers their image copyright with the U.S. Copyright office as well as with Fine Art Registry to ensure that their copyright ownership is easily accessible to the public and all interested parties. Registration with both these entities is easy and inexpensive, so don’t make the mistake of thinking that registering the copyright of an image is only something for high-end expensive artworks. I recently visited a display of art in a public lobby in New York, where the pieces were for sale in the $50 to $500 price range – yet there was actually a sign up saying photography was allowed. I suspect that if photos had been prohibited, many of the pieces would have been sold – instead, people just took pictures of the ones they liked instead of buying them. I think these artists, and the non-profit that organized display, did themselves quite a bit of economic harm by openly allowing photos of the works.
While the photographer would hold the copyright in the photograph of the painting, the copyright in the painting does not go away, and the photographer’s right is held subject to the original copyright. The photographer could legally preclude others from ‘lifting’ their photo, say off a webpage or color photocopied off a flyer; however, the original copyright holder could also preclude all but fair uses of the derivative work. Any other interpretation would provide an obvious and dangerous loophole that would undermine the whole point of copyright law, which is the protection of creative works.
As for that famous soup can painting, while Campbell’s or whatever graphic artist they engaged to design their cans could have sued Warhol for copyright infringement, the bigger issue would have been the violation of registered trademark, in exploiting a known commercial symbol for another’s commercial (i.e. sale of a painting) purposes. My understanding is the Campbell’s decided to see it as a silver lining – having their brand name splattered all over the art magazines and Sunday papers might, after all, just make one hungry. While they might have prevailed against Warhol in a lawsuit – common sense prevailed. Which, like a nice bowl of cream of tomato soup with some Ritz crackers crushed up in it, is rather heartening.
— Cindy Ellen Hill, Esq. | September 12, 2006
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