Legal Question: photography of public art

About a year ago I was up in Seattle looking for something to photograph. It started raining pretty hard (big surprise) and my girlfriend suggested we go over to the Freemont Bridge and photograph the Troll Sculpture under the bridge to get out of the rain. We did. However, while breaking down the 4x5 camera a fellow appeared from "nowhere" and read us the riot act. Said that no one could photograph the troll with any intent to sell the photographs because the artist would not stand for it. At the time I thought maybe he just lived under the bridge himself. After all this was a piece of art permenantly displayed in a public place.

 

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Well here we are a year later and I have a beautiful BW photo of the troll. My girlfriend is opening an import store and art gallery in August and wants me to display the troll (for sale) along with several of my other photos. Suddenly I keep hearing this fellow say "it would not be legal for you to sell photos of the troll" over and over in my head. Any comments ? Are there any circumstances where public art can not be photographed and sold ?

The only place to get your answer is from an attorney specializing in

intellectual property rights in the State of Washington. There are

many opinions on this but the local law prevails and is usually very

specific. Both you and your girlfriend could be vulnerable if you

get the wrong advice. Be careful here................

Paul,

 

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This is a very important question, and I second C. W.�s advice and

would add that this is a constantly changing area of Law so you need

to educate yourself and ask for legal assistance just to find the

right attorney. It is very important to find someone that is active

in this field. And I speak from experience when I say that you need

to educated yourself, ignorance does not make a good defense. I hope

your question generates good response.

I would also add that there are many Cities,Towns, etc. that have a

fee that they charge for the rights to use photographs taken in their

City and or Towns etc. And I remember reading an article in a photo

mag. not to long ago where I think Seattle was discussed as being one

of those cities and that they have �Photo Cops� that read and look at

publications just to find photos that they can collect on. Some how

I remember that many National parks are, or are looking into, doing

this to.

 

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Good Luck....

Fees for photos in national parks? Gosh, I hope this wrong. Does

anyone know which parks are considering this foolishness or have

implemented it?

 

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On the one hand it does seem that a photographer somehow is profiting

from public land in which he/she had no part of creating. On the

other, it just seems absured to charge for something that we all own

as citizens. What is the harm? This is a very thought-provoking and

confusing subject. I hope someone will share some details about what

is happening.

 

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I live 90 miles from Yellowstone, and hope to get up to Glacier NP

shortly. I might sell some of my photos at some time in the future,

but as a non-professional photographer, I don't feel I should be

charged for practicing my hobby.

With regard to the National Park Service policies, you can find them

on line but I presently do not have the link. Basically, the policy

goes something like this but be sure to confirm this as I may not have

it precisely correct::::

 

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As long as you do not have elaborate equipment, sets, lighting, props,

models, and other paraphernalia, there is no fee. When they see

photographers with the above, they start to ask questions about

potential commercialism and can charge a professional use fee. A lot

of this is left to the discretion of the local official(s).

 

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Rules for State parks and private parks and gardens may be similar.

 

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View camera gear tends to raise eyebrows as it's a tad more elaborate

than the point-'n-shoots! If questioned, I tell the truth about

being a professional and supply my business card and state business

license--to date I have not been charged any fee, but I might add that

I am a mature gent with silver hair and I am overwhelmingly polite to

the officials!!!

The answer to every legal question is: "It depends." Photographing

nature, even in a National Park may be one thing, but under federal

copyright law, photographing someone's artwork (the work is most

likely copyrighted) is another thing entirely. Think of it this way -

- photographing and selling your prints of Half Dome in Yosemite v.

photographing (copying) and selling prints of Ansel Adams' photograph

of Half Dome in Yosemite. That is essentially the issue here in

lurid 3-D. It might cost you a percentage, but I'd suggest

contacting the sculptor and seeing what kind of license arrangement

you can get -- artist to artist you'd get some respect for at least

asking. Anyway, no legal advice intended or implied . . . yada,

yada, yada.

I would certainly ask and be friendly about it, and maybe it might

turn into a collaboration.

 

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Didn't one of the professional organizations win a case some time ago

involving a photographer who photographed the Rock & Roll Hall of Fame

in Cleveland for commercial purposes? The H.O.F. claimed exclusive

rights to sell images of its structure, but the court upheld the

photog's right to photograph a building visible in the public space.

 

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Nonetheless, it would be much more interesting and productive to

collaborate with the sculptor, if you really like the work and the

sculptor is amenable, than it would be to assert the right just to

sell a few postcards.

http://www.photosecrets.com/p14.html

 

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Whenever this issue comes up, I like to post the above by a

prominent copyright attorney on "Travel Photography and the

Law," with material that applies here. The copyright to that

sculpture undoubtedly (w/o legal opinion intended) belongs to

the artist; as you will read, even buildings constructed after a

certain date hold copyright. Maybe this is why we photograph so

many anonymous rocks and trees!

With golfer Tiger Woods having recently lost a suit trying to keep a

painter from selling litho prints of a painting he did of Woods, the

decisions are all over the place. But, shoot it in a public place &

you can 'most likely' sell prints of it though not use it in an ad.

Check with your attorney, or more specifically, one who specializes

in intellectual property(many attorneys don't understand it and some

don't know what it is either).

I suggest that you contact the local ASMP chapter. They should be

able to recommend a lawyer with experience in this area.

 

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Bruce

Whats ASMP ?

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<P>My husband is a photographer. The following is my personal opinion

only and not intended to be a legal advice. All the cases and law

review article cited below can be found in any law library. For more

discussion on the subject of photography and copyright protection,

see Jennifer T. Olsson, "Rights in Fine Art Photography: Through a

Lens Darkly", 70 Tex. L. Rev. 1489 (1992). </P>

<B><P>Question presented: </B>Can public art be photographed and sold?

</P>

<B><P>Short answer: </B>public art may be photographed unless it

constitute main motif of picture and is used for commercial

purposes.</P>

<B><P>Case in point: </B>Rock & Roll Hall of Fame and Museum,

Inc. v. Gentile Prods., 934 F. Supp. 868 (N.D. Ohio 1996).</P>

<P>Cleveland photographer Chuck Gentile photographed a downtown

museum against a Lake Erie sunset, made it into a poster, entitled

it "THE ROCK AND ROLL HALL OF FAME AND MUSEUM IN CLEVELAND," and

offered it for sale throughout the metropolitan Cleveland area. The

Rock & Roll Hall of Fame and Museum, however, was less than

thrilled. It sued to enjoin all publication and distribution of

Gentile's poster on the grounds that it violated the Museum's

trademark rights in both the building and the name, "ROCK AND ROLL

HALL OF FAME."</P>

<P>Gentile asserted that he did not need the Museum's permission to

sell the posters because the building is in a public place. Sounds

familiar? Well, unfortunately for Gentile, the United Stated District

Court for the Northern District of Ohio disagreed and enjoined

Gentile from selling and distributing his poster. The court found

a "likelihood of confusion" between Gentile's poster and the Museum's

trademark that would cause irreparable damage to the Museum's

licensing program and revenues. </P>

<P>Analysis: Generally, photography of buildings permanently situated

out-of-doors in public place not infringement unless it constitutes

main motif of picture and is used for commercial purposes. Gentile

lost his case because the Museum's building is subject to trademark

protection. This case was decided in the State of Ohio. Though I

haven't found a similar case decided in the State of Washington, it

is my opinion that a court is likely to apply the same standard to

photography of a sculpture that is permanently displayed at a public

place. In other words, if the Troll Sculpture is subject to trademark

protection, it would be infringement to sell photographs of the Troll

Sculpture.</P>

<P>Even if the Troll Sculpture is not subject to trademark

protection, the sculptor would have the right to publicly display his

work under the copyright law. However, if the Troll Sculpture does

not constitute main motif of the overall composition of the

photograph, it is likely, upon finding a "fair use" exception, the

court will find the sculptor's right not being infringed. In this

case, the photographs may be sold commercially because when the

location of the camera and choice of time and season result in an

artistic composition, copyright extends to the <B>overall

composition</B> that results from the photographer's exercise of

judgment, skill, and creativity. </P>

<B><P>Conclusion: </B>IMHO, commercial sale of the photographs of the

Troll Sculptor may infringe on that sculptor's right. What is more,

you have per se notice of the artist's intention, "it would not be

legal for you to sell photos of the troll." It would be prudent,

therefore, to contact the sculptor and obtain a license to sell the

photographs of the Troll Sculpture.</P>

<P>"A century or so ago, Paul Cezanne reached into a fruit basket and

said, 'With this apple, I will astonish Paris.' So he did. He painted

a picture of that apple so magnificent that it takes the breath away.

If he tried that today, he'd probably have the apple growers suing

him for royalties. Sillier things have happened." - - Dan Lynch,

Artist a Loser at the Track, Times Union (Alb.), July 28, 1996, at

B1. </P>

<P>Personal opinion only. </P>

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<P>Regarding the Gentile case: The Sixth Circuit court determined in

1999 that the Museum did not establish a strong likelihood of success

on the merits and, therefore, vacated the preliminary injunction, 71

F. Supp. 2d 755 (1999). The Sixth Circuit reached this conclusion

because it determined that on the record before them, plaintiffs

<B>had not used their building design as a trademar</B>k. Gentile's

poster was thus a <B>fair, non-infringing use where the Museum failed

to demonstrate actual confusion and secondary meaning.</B> The court

analyzed the claim purely under federal trademark law. The question

of First Amendment protection is still in debate.</P>

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What nobody has touched on yet, is the tremendous cost of defending

yourself against a lawsuit. Sometimes the only way to win, is to not

play.

Thank you all for your responses and very helful links to other pages.

I'm convinced after reading your responses and checking the suggested

links that I definately need to get ahold of the Freemont Troll artist

before doing anything else with this negative an print. He obviously

needs to be on board regarding any income that might be generated from

my photograph. I have found his name and phone number and plan on

contacting him this evening.

Was a copyright notice prominantly placed or near the statue? Selling occasional " art" prints of an image usually is okay. making a POSTER AND

DISTRIBUTING THOUSANDS OR SELLING THE IMAGE FOR USE IN ADVERTISING USUALLY REQUIRES A LICENSE. Your best bet is to

contact the artist or his or her estate and ask. Whether it is located in public or private space is not the issue. "The Cadillac Ranch" near Amarillo is located

within viewing distance of an interstate highway, daily probably dozens if not hundreds of people stop and make photographs of it. Some of those people are

professionals. There is a copyright notice leading up to the installation. I tracked down the artists who created the installation (A collective known as"The Ant

Farm") and asked and was glad I did as they are vigilant about protecting their copyright and getting royalties when the image is used in a commercial fashion.

They retain an attorney to handle this for them. My images went to my stock agency with a clear notice that any commercial (i.e advertising as opposed to

editorial or educational) usage would have to be okayed and licensed by The Ant Farm. <P>So about a year later I get a copy of a brochure from a paper

company, designed by an ad agency with a photograp similar to mine, but no credit to the Ant Farm. Hmmm, I think. Two days later I get a call from my

stock agent saying "hey we are really glad you followed up on that copyright licensing of the Cadillac Ranch images. Why? I ask. "Because this ad agency

wanted to use your image for a paper company's marketing brochure but they didn't want to hassle with getting license and paying a fee to the artists so they

an image from another agency". Yeah? I respond."And now the client, the aad agency, the stock agency and the photographer are all being sued by The Ant

Farm.<P>

Curiously, one of the things one of the Ant Farmers said to me was they weren't worried about people making and selling photographic prints, just

commercial usage like posters and ads.

You reveived very good advice. Here is my very personal "common

sense" opinion: Everything that is on common display should be "free

game" for photographers, be it landscapes (lone pine tree!!), be it

buildings, be it sculptures somebody placed in public. I find it

ridiculous not to be allowed to paint/photograph/write about a piece

of art that is on PUBLIC display. If the artist doesn't like it, he

shouldn't place it in the open but in a museum instead. Things inside

of museums, galleries, shops (like the Ansel Adams print mentioned

above) etc. of course should NOT be photographed.

 

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I know, that this "common sense view" is not what the law prescribes -

and I find it very sad!!!!

Why not keep it simple and contact the sculptor? Explain your desire

to share his work and yours with a larger audience and ask if he'd

have any objection to your selling prints in your girlfiend's

gallery. Offer to send him a courtesy print and promise that, beyond

selling prints as agreed, you'll never publish the photo elsewhere

without coming back to gain permission for another use. Offer to

send him a letter to that effect. If he agrees to let you sell

prints, you could then ask for a permission letter that you can show

to gallery owners or buyers. In short, approach the artist with

respect and consideration and create a positive experience.

Achieving your goal without getting any more legalistic than you have

to is a victory for everyone involved.

I agree with the sentement of the other posters, contact the artist

and try to arrange something, say perhaps crediting them on either

the back (e.g location, name of sculpture, date it was erected/or

when photo taken, name of artist), or in part of the title of the

print. By all means offer a royalty fee, if they have any other

works offer to shoot them. Remember to offer say a 16x20 selenium or

otherwise toned print.

As far as Gentile and the Rock and Roll Hall of Fame, I had understood

the opposite of what the previous poster said.

 

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I read that Gentile had won the case because 1) he was on public

property while photographing the building and therefor did not infringe

on the building physically, and 2) the building is such a dominating

part of Cleveland's skyline, shoreline and overall image that the

museum could not claim exclusive rights to its being photographed.

 

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Am I referring to an earlier ruling? If what the poster said is true,

it will progress out of district court to supreme court before it is

decided. FYI, the ASMP, American Society of Media Photographers, is

handling his legal costs.

 

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Frank

 

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http://www.culturalvisions.com/

Another legal question posted today made me revisit this post. I felt

I should give the outcome. I did contact the Troll artist. It turned

out to be four people. I talked to two of them. They dicussed my

request to display Troll prints for sale in gallery like conditions.

They agreed in writing to let me sell the print as long as I gave them

credit on the back of the matted prints. The letter allows me to sell

the print for two years at which time the issue would need to be

revisited. They requested a one time exchange of money. I can't

remember, but I think it was $10.00. They did not wish to receive a

commision.

This is a little off the main question but bears on some of the other

comments re:natl. Parks.

I was in DC last year and wanted to take a shot inside the train

station. I was off in a corner next to a potted plant totally out of

the way but a guard came over and said, "No tripods". I couldn't

disuade him. Then later on I was out side the Hirshorn Museum on the

Mall and a guard came out with the same request. I had to move back

to the public sidewalk to appease him. Still later I wanted to take a

shot in a metro station and set up the tripod behind a bench again

out of the way and was told to move along. The next day on the lower

entry "patio" of the Supreme court bldg another guard came over and

wanted to know if I was going to sell the picture. I can undersatand

having dozens of tripods in the middle of pedestrians but 1

person ???

The issue with tripods is that they don't want tripods interfering with people's ability to walk around for various safety and liability reasons. The thing is, when they define the rules for the security people, they do not deal with gray areas. They say, "no tripods", and the security people enforce the rules as presented. Simple. Nobody ever got in trouble from enforcing the rules too strictly, but the opposite isn't true.

<p>It is my opinion as a photographer, NOT a legal advisor that indeed you CAN sell ANYTHING you can take a picture of in public. I don't care if it's copyrighted or brand new or whatever...if the artist displayed it in the public forum...then you CAN capture it and display your artwork of his artwork....AND you can sell your artwork of their artwork for as much as you want as many times as you want....what you MAY NOT do is commercialize the image. That is, you may not sell the picture you created to others to use in their commercial publications. You may sell it only to the end user. That is, the art customer who prefers YOUR art of anything you take a picture of.<br>

That being said if you are restricted from photography in a legal way, such as a private venue that explicitly prohibits photography then you may not.<br>

The genius who told you the artist would not stand for pictures being sold was actually quite ignorant. That would be like me not being able to sell my pictures of a celebrity that I capture in a public place. While I cannot commercialize the image I certainly can and will sell the image to those who will use it for what they will whether it be as news in a magazine or television show or for those who want to frame and display in their own home or place of business their own copy of my super duper awesome picture of the absolutely stunning and deliriously talented Taylor Swift for example...(insert 10 seconds of deadpan silience here). Drop mic, exit stage left.</p>

Hank,

This is a 15 year old thread and before your reply the last one was almost 8 years ago.