Copyright question

Baldy · July 19, 2005

There is a sculptor who is quite livid with one of our subscribers and Smugmug. The subscriber posted a photograph that he had taken of one of her sculptures which is on display at a public park. He has also left the ability to order prints on for the gallery that contains the photo.

The sculptor claims she has engraved a copyright notice on the sculpture and therefore the photographer cannot photograph it, display the photograph on the net, or sell prints of it. We have been unable to contact the photographer.

What do you know of each of their rights?

Thanks,
Baldy

MrBook2 · July 19, 2005

Copyright and artwork
About the only thing that I do know is that photographing artwork is a very tricky situation. I am not a lawyer, but I have been doing a lot of reading on copyright as it pertains to photography. I don't know where the line is but I do know that as a piece of art, you cannot make a profit from photographing it without the copyright holders permission. Engraving copyright doesn't really matter, the work is copyrighted from the moment of creation.

A quick google with the correct search words (photographing art copyright) turned up this link: photographing art copyright. There are a ton of articles about copyright on the net, but as with all things on the internet, you can'tguarantee their validity. This may be a case where you guys would be well served by spending the cash to talk to a lawyer for an hour or two. I think that smugmug is covered pretty well by the "COPYRIGHT COMPLAINTS" section of the terms and conditions statement, and you are doing the right thing by looking into this.

Now, don't even get me started on copyright for buildings...

I look forward to seeing how this one pans out. Copyright law fascinates me.

--Aaron

luckyrwe · July 19, 2005

Whatever happened to being flattered that your work is made into a picture or post card? I think if I was the sculptor I'd ask for a blurb about me on the back of the picture and maybe 25% of the profits. That would be more than fair and I am sure could be arranged.

As it sounds now, tell me the sculptor's name and I will never hire them!

wxwax · July 19, 2005

luckyrwe wrote:

Whatever happened to being flattered that your work is made into a picture or post card? I think if I was the sculptor I'd ask for a blurb about me on the back of the picture and maybe 25% of the profits. That would be more than fair and I am sure could be arranged.

As it sounds now, tell me the sculptor's name and I will never hire them!

If you sculpt for money, then naturally you'd be miffed if someone was using your work to profit themselves. Flattery comes a distant second to money! I'm sure you could negotiate a deal.

Baldy · July 19, 2005

So the official word from our law firm is: anyone can sue for anything. Whether the suit has merit depends on the interpretation of the courts but you still have to defend yourself whether the suit has merit or not.

Under current copyright law, works of art — sculptures, paintings, and even toys — are protectable by copyright. Furthermore, buildings created on or after December 1, 1990 are protected by copyright. A copyright owner has the exclusive right to reproduce a copyrighted work, and photographing a copyrighted work is considered a way of reproducing it.

A law firm purporting to represent the Baltimore Colts notified us that they intend to press charges against anyone including their fans who photograph Baltimore Colts' personnel, players, signs, apparel, etc., and post them to photo sharing sites such as smugmug.

But wait...there's an exlusion for fair use...

But there isn't a simple rule to determine when it's fair use. We're most likely to fall under fair use when it serves traditional fair use purposes (educational, research, news reporting, criticism, or public interest). But it's subject to interpretation of the courts.

My own personal opinion is it's like medical mal-practice suits: in study after study it's been shown that they are not correlated to the competency of the physician, only to his bedside manner.

Wxwax's beautiful Atlanta shots that we all love are clear violations of copyright law, but from a practical point of view, why would anyone want to sue over them? More likely someone would sue when they have a personal axe to grind.

DJ-S1 · July 19, 2005

I thought that the Rock-n-Roll Hall of Fame vs. Gentile case was decided in the photographers' favor?

Maybe I'm mistaken.

ginger_55 · July 19, 2005

That seems a bit slanted to the artist involved in things like the sculpture. She/he can yell and scream, and I don't know about other people, but I wouldn't tangle with the person. I can't afford a lawyer to win a lawsuit.

However, no one told this person to put, give, sell, whatever, the object d'art to be placed in the face of the public. Seems quite petty, IMO. Which means nothing, and I should be doing just about anything else. I just read this, though, and it is annoying. It is so blurred that, well, it is crazy!

We just had this big bridge finished and everyone and their uncle is photographing it. There were contests as to the best photograph, which I did not even try for.

Pictures of that bridge are for sale in galleries and stores all over town. (I never thought about these artists/photographers/tee shirt sales people having to pay a fee to the city, the county, the taxpayers? and the designer?)

Yet some obscure sculptor could sue if I were to take a photo of a sculpture in a park and then sell it. I would think it would be good advertising.

Of course, suing over the issue would bring even more attention????

I don't like the feel/smell of this. I would do my best to bring no publicity to this person, and the law is crazy. IMO.........and I am always right, ask my husband who has to live with it.

g

Angelo · July 19, 2005

Baldy -

Let me point out...

Architectural copyright covers the design of the building not the actual structure. It does not extend to photographs of a building in plain view of the public, on a public street... etc etc etc.... blah blah blah.

Arch. copyright protects against someone erecting a duplicate building without permission and presumably compensation to the architect / designer of the original.

The reasoning: Architects don't build they design; and their designs are represented as plans and sketches (blueprints and renderings) not structures.

wxwax · July 19, 2005

Baldy wrote:

A law firm purporting to represent the Baltimore Colts notified us that they intend to press charges against anyone including their fans who photograph Baltimore Colts' personnel, players, signs, apparel, etc., and post them to photo sharing sites such as smugmug.

They could only sure if the images were for sale, right? Not if the images are merely displayed, surely.

wxwax · July 19, 2005

Angelo wrote:

Baldy -

Let me point out...

Architectural copyright covers the design of the building not the actual structure. It does not extend to photographs of a building in plain view of the public, on a public street... etc etc etc.... blah blah blah.

Arch. copyright protects against someone erecting a duplicate building without permission and presumably compensation to the architect / designer of the original.

The reasoning: Architects don't build they design; and their designs are represented as plans and sketches (blueprints and renderings) not structures.

I dunno, Angelo, I don't think so.

Here's the wording, I've underlined the relevant part for this point:

SCOPE OF PROTECTION

An original design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings, is subject to copyright protection as an “architectural work” under Section 102 of the Copyright Act, 17 U.S.C., as amended on December 1, 1990. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design but does not include individual standard features or design elements that are functionally required.

The term building means structures that are habitable by humans and intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions.

And ginger, bridges are specifically excluded from copyright protection.

Works Excluded

The following works cannot be registered:

• Structures other than buildings, such as bridges, cloverleafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats.

US Copyright Office

luckyrwe · July 19, 2005

If it was not for the photographer maybe no one would have ever even heard of the sculptor.

JamesJWeg · July 20, 2005

Baldy, Arn't you just selling server space?

You didn't take the photo right? Sounds like someone is just being a butt.

James.

Baldy · July 20, 2005

DJ-S1 wrote:

I thought that the Rock-n-Roll Hall of Fame vs. Gentile case was decided in the photographers' favor? Maybe I'm mistaken.

Well... The photographer actually lost, but appealed. The injunction was lifted in a close, controversial decision that is still hotly debated today.

The bottom line is the Rock 'n Roll Museum was selling posters, which it felt it had a unique right to do. A photographer also began selling posters, so they sued him to eliminate competition. He would have had to sell a lot of posters to pay for legal fees that included an appeal.

Interestingly, they apparently lost the case not because the suit was without merit, but because they had not consistently handled and defended their tradmarks. Hence the reason the Baltimore Colts threaten to sue their fans for taking pics at a game. If they are going to protect their trademark from people who steal it to make jerseys, etc., they apparently feel they have to defend it against all comers, including their fans who make happy snappies.

ian408 · July 20, 2005

Baldy wrote:

Interestingly, they apparently lost the case not because the suit was without merit, but because they had not consistently handled and defended their tradmarks. Hence the reason the Baltimore Colts threaten to sue their fans for taking pics at a game. If they are going to protect their trademark from people who steal it to make jerseys, etc., they apparently feel they have to defend it against all comers, including their fans who make happy snappies.

The consistent defence of copyrighted work is paramount in any suit
involving copyrighted work. If you claim copyright but do not consistently
defend it, then it's unlikely the one time you do defend, you win.

That's why you see such aggresive protection of corporate logos,
trademarks and copyrights.

I thought that copyright allowed for some derivative work?

Ian

mercphoto · July 20, 2005

Yet some obscure sculptor could sue if I were to take a photo of a sculpture in a park and then sell it. I would think it would be good advertising.

Of course. You are making money off his hard work, and he is not getting compensated for it. You would not like it if you had a photo displayed, and someone photographed your photo, and then sold the photograph of the photograph.

The consistent defence of copyrighted work is paramount in any suit involving copyrighted work. If you claim copyright but do not consistently defend it, then it's unlikely the one time you do defend, you win.

Absolutely correct. You cannot pick and choose when you defend your copyright (or patent, for that matter) and when you do not defend it. And there are very, very good reasons for this.

Angelo · July 20, 2005

wxwax wrote:

I dunno, Angelo, I don't think so. Here's the wording, I've underlined the relevant part for this point:

Waxy - here's other relevant info on this subject. This has been tried and the case of copyright protection on a structure could not stand up to right of ownership. An architect can own copyright to the design and plans for a building but the actual structure involves many individuals who can lay claim to participation in the erection, namely; surveyors, structural and mechanical engineers, contractors and tradesmen.

Only buildings created after December 1, 1990 are protected by copyright. Fortunately for photographers, the copyright in an architectural work does not include the right to prevent others from making and distributing photos of the constructed building, if the building is located in a public place or is visible from a public place. So you don't need permission to stand on a public street and photograph a public building. You don't need permission to photograph a public building from inside the building (although you may need permission to photograph separately-owned decorative objects in the building, such as a statue). You don't need permission to stand on a public street and photograph a private building such as a church or a house.

Angelo · July 20, 2005

JamesJWeg wrote:

Baldy, Arn't you just selling server space? You didn't take the photo right? Sounds like someone is just being a butt.

James.

butts belong in a different forum

flyingpylon · July 20, 2005

If anyone has used a digital camera to photograph the Baltimore Colts, I'd like to see the photos, since the Colts moved to Indianapolis in 1984.

Sam · July 20, 2005

There is a sculptor who is quite livid with one of our subscribers and Smugmug. The subscriber posted a photograph that he had taken of one of her sculptures which is on display at a public park. He has also left the ability to order prints on for the gallery that contains the photo.

The sculptor claims she has engraved a copyright notice on the sculpture and therefore the photographer cannot photograph it, display the photograph on the net, or sell prints of it. We have been unable to contact the photographer.

What do you know of each of their rights?

First about rights. It really depends on how much money you have and just how good a shyster you have, who was appointed to the supreme court etc.

As for the alleged sculptor, I can see her beef with the photographer, but does she really expect you or any photo hosting service to censor each and every photograph on the server?

I would think that once you have been apprised, and given proof that a photo of a copyrighted item is for sale on Smugmug, you may have an obligation to prevent the sale of said photo. I doubt you any responsibility to remove the photo.

If she has her sculpture in a public place there is no way she can prevent people from photographing it. Of course it would be fun to watch her try. She can however prevent the selling of the photograph.

Sam

Sam · July 20, 2005

A law firm purporting to represent the Baltimore Colts notified us that they intend to press charges against anyone including their fans who photograph Baltimore Colts' personnel, players, signs, apparel, etc., and post them to photo sharing sites such as smugmug.

:cry :cry :cry :cry :cry :cry :cry :cry :cry :cry :cry :cry :cry :cry :cry :cry

Oh this I gota see…………..your telling me the (insert current city) Colts will sue dad if he posts a photo of little Billy with his new (way over priced) Colts jacket / hat?

How long do you think it would take after the story hits the news before the lawsuit was dropped, with team spokesmen looking down at there shuffling feet, and stuttering explanations? Or then again, never underestimate the stupidity of people. They may just accept it and continue to shell out big bucks, and ask when they can be abused again.

:

:

Wxwax's beautiful Atlanta shots that we all love are clear violations of copyright law, but from a practical point of view, why would anyone want to sue over them? More likely someone would sue when they have a personal axe to grind.

Why is this a clear violation of copyright law? Is the entire city copyrighted? If so who owns the copyright? Individual building owners, or the city? How about the state, or county? I think the local politician may want to get a piece of this pie. Think about it,…….this could be a gold mine! The city copyrights everything about the city. They now can sell limited rights to map makers, businesses to use their address in advertisements, etc. Holy cow…….every resident would have to pay an annual use fee to use their street name. Think of the potential revenue!

Sam

Copyright question

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