Whose art is it?

Almost every non-photographic artwork ever made has probably been photographed

at least once by either tourists or documentarians. The identity of the

photographer is generally either unknown or secondary to the identity of the

artwork shown. The picture is not art; the artwork in it is.

 

However, when an artistic photograph is made that contains non-photographic

art, the location and ownership of the assignment of the 'art/artist' tag seems

to be in limbo.

 

So, my question is, when an artistic photograph contains art, when does the

photograph itself become 'the' art, and then, whose art is it? Does it belong

to the photographer, the artist whose artwork is shown, or to both?

 

I was thinking about this because the sculptor Andy Goldsworthy routinely

photographs his scuptures and then sells the resulting images as limited

edition prints. He always describes himself as a sculptor and not a

photographer but also states that the photographs are an integral part of what

he does. As many of his works are ephemeral, I am happy to be able to see his

pictures in books. I have mixed feelings about calling his photographs of

them 'art' in their own right, even though they are lovely images. I'm not sure

how Mr. Goldsworthy would describe them, but he does sell them as limited

editions prints, sometimes signed and with handwritten notes.

 

Even if Goldsworthy does not himself consider them to be art, I would guess

that art galleries are happy to sell them as such. Without a doubt they will do

so in the future.

 

He almost always makes the pictures of his works himself. However, in his

interactive creations (in which he takes part such as throwing things into the

air) necessarily, someone else takes the pictures. When working in the Arctic,

he had a professional, Julian Calder, take the pictures due to "the high risks

and degree of difficulty".

 

If the pictures made by Julian Calder are considered to be art, whose art are

they?

 

This is not in any way meant to be judgemental of Goldsworthy or of multiple

authorship. I am very happy that Andy Goldsworthy does make or have others make

the pictures of his sculpture, and I am happy that he is able to generate well-

deserved revenue for his beautiful creations, many of which last for only a day

or less. What I am curious about is the status of his photographs as art in

their own right. Do you think that they are art and if so, how should

credit/authorship be alloted?

 

This question also applies to the many pictures that I see on photo.net that

incorporate scultpure, many without identifying the maker of that art.

 

-Julie

Photographing a piece of art is no more the artists than if I were to photograph a book. If I did so would I then have to site the author/book in the photo. What if I took a picture of a building . . . the architect then or the owners? In fashion, would we have to credit the clothing, Nudes the subjects parents? It sounds absurd but how else to illustrate absurdity? And then if I sell it should I be giving a percentage to either/or...a photograph is just that a photograph. . . whoever shot it . . . owns it.

I can't think of any hard and fast line to be drawn that would simplify it. To me, it's a question of whether the photographer has simply recorded the work, or whether s/he has brought something of his/her own to to the resulting photograph. E.g., a photo that just shows the statue vs. a photo that shows the statue in context or shows something in particular about the statue that isn't just a literal recording of the total work.

 

See, I told you that wouldn't help...

<i>a photograph is just that a photograph. . . whoever shot it . . . owns it</i>

<Br><br>

But, Rob... the presence of someone else's creative work in a photograph, as the <i>subject</i> of that photograph (or a key component of it) means that the photograph is a derivative work. There's a reason that concept is so well tested and so frequently discussed in intellectual property law. "Fair use" of another artist's work is usually in academia, reporting, or personal use (say, a vacation snapshot). But a photographer that <i>sells</i> work that, without another artist's work centrally playing a role in it, does need that other artist's permission to make a buck from their efforts. Certainly there are some examples where satire, etc., require a different look at the situation. But making commercial use of an image that in turn depends on another artist's work to make that image what it is... that's pretty cut and dry. The orginal artist gets a say (and possibly a cut) if the copyright time window hasn't yet closed.

Marshall, that's about where I am.

 

Rob, I should have made it more clear that I am interested in who/what is the art/artist, not in who is the owner. I agree that the photographer always owns the work (aside from privacy, model release, copyright questions etc).

 

-Julie

Matt Lauer, I posted previous at the same time as yours. Very true on the legal issues.

 

Even without the legal and financial issues, it just doesn't feel right to me to use another's work within ones own art.

 

-Julie

Matt, would you extend your reasoning to pictures that exploit an architect's creativity? What about photos of almost anything (cars, fountains, gardens,etc.) that leverage another's creativity?

I don't deny that that is true in case history commercailly but what about artistically. meaning sold in an art gallery did andy Warhol have to pay royalties to campbells soup? however I don't have to agree with it. If I take a scenic pic of the San Fransisco bay bridge and sell it...do I have to pay royalties...what about a BMW...or a Cup of Tea.

Dick: it's certainly not an easy topic. There's no question that if we had to - in real, practical terms - take that into account across the board, it would be a mess. I think it comes down to the ol' "reasonable person" test. Would a reasonable person consider a the commercial use of an image to be truly depending on another artist's work, or not? I'm all for our collective ability to be, well, <i>reasonable</i> about it. Do I think that it's too hard to make fun of <i>American Gothic</i> without getting absurd letters from the people that (appear to) command the rights of the artist's estate? Sure. Does a photograph of two people dressed up in an alternative style, as something of an homage to that work (as was picture of the week here, once), cross some line? Nah. Does posing in front of Rodin's thinker make a difference at this point, given the passage of time? Nah. But does illustrating an advertisement with a photograph that depends on the inclusion, in that photograph, of someone else's current copyrighted material present a possible problem? I think so.

<br><br>

Your architecture example is an interesting one. It's arguable (we're back to the "reasonable person" test again, I suppose) that when someone commissions, say, a public building from an architect, that the building is exactly fulfilling its purpose when it becomes - among other things - a backdrop for public activity (like taking pictures). But if I commission an architect to build me a unique structure on my private property, and someone seeks to commercially exploit that work without permission (i.e., no property release on a photograph going into an ad or calendar), then we're back to legal issues again.

The whole thing makes my head hurt...Which is why I like working in ICU and not the legal system....your either alive . . . or not.... no real Grey area. . . no need for the reasonable person test:)

<i>I don't deny that that is true in case history commercailly but what about artistically. meaning sold in an art gallery did andy Warhol have to pay royalties to campbells soup? however I don't have to agree with it. If I take a scenic pic of the San Fransisco bay bridge and sell it...do I have to pay royalties...what about a BMW...or a Cup of Tea.</i><p>

I'm not a lawyer but I think the laws covering "model release" type stuff exempt buildings and architecture so you wouldn't need permission to shoot the Bay Bridge. I think if you bought the BMW you can sell pics of it. If you wander onto the dealer's lot you would need their permission.<p>

I think there have been court cases when building owners have tried to stop people from taking pics and the building owners lost. I think the situation would be different at say a medieval castle with a big wall around it. I've been to many places that prohibit INDOOR or "in wall" photography but taking pics of the outside is fine.

Matt--

 

You brought up an interesting point which may warrant further discussion. Photographing art

objects is, indeed, derivative. Is all photography derivative by its very nature? To what extent,

regarding derivation, does photography differ from, say, painting? Most (most!) photographs

are dependent on a corporeal subject for their making. But a photograph is not its corporeal

subject. Obviously, taking a picture of a tree in a field is a different legal and even a different

esthetic matter than taking a picture of the Mona Lisa or M's David. But there are some

similarities that may tell us more about photography than the differences.

Your approach, Matt, is certainly reasonable and makes a lot of sense. Unfortunately, defining the term "reasonable" seems to be keeping lawyers rich and photographers anxious.

It's tricky, ain't it? I'm running into this right now. Someone saw <a href="http://www.photo.net/photo/6462473"><b>this image</b></a>, which I shot to illustrate an online article (classic fair use), and now wants me to consider working in the same area for something more commercial... where the work of the engraving artists (still alive and producing work) in that industry would be an important focus. Now, when someone sells a decorated object to a collector, and the collector happily signs a property release, it all feels warm and fuzzy... except there may indeed actually be issues if the original artist that did that engraving decides to make a fuss. Ugh! I want to get involved in the project, but it's certainly a damn hornet's nest when it comes to this sort of thing.

I don't think it's a meaningful question.

 

The concept of "art" has mostly referred to "kitsch" and "decor" for a long time. Few have seen a Goldsworthy photograph, much less the objects of his photographs: they've just seen books, and books contain reproductions, not photographs, much less "art."

 

I happen to like what Goldsworthy does. If he wants to call it "art," that's fine. But he's doing something more significant than that.

John-- You probably left San Francisco before the new de Young was finished. Marvelous

structure and house of art. Goldsworthy's crack is fabulous, not just because of how well it

works and how harmonious it is in context. To sit in the courtyard of the museum and hear

people's reactions is a work of performance art in itself. The Goldsworthy near the Rodin

garden at Stanford is less interesting and appealing.

Fred, I'm envious of your opportunity, don't think I'll be visiting SF again any time soon.

 

Goldworthy's work appeals to me in reproduction. In Santa Fe there's a gallery that primarily shows modern Japanese baskets (cc$5K-30K), and their fine book reproductions are almost rivals to the objects themselves.

 

Are you familiar with the simulated-earthquake-destroyed private park adjoining the Transamerica Pyramid? A joke by the architect, beautiful, amusing, worth a visit. Brickwork bursts upward into fountains and redwood trees, as I recall. Great place for a picnic.

 

A close friend and photographer has sent fine images of the new deYoung, and I hate them. He loves the place: I undoubtedly will when visiting the reality. From the East Bay, he enters the museum via its underground parking (?), whereas I've always walked there through the park, having lived in the Upper Haight or even closer on Irving for most of 70' thru 93'. I loved the old, mournful deYoung...part of me was brought up there (and at the aquarium and conservatory, and at Spreckels Lake, where I sailed model yachts as a boy http://sfmyc.org/index.php?option=com_weblinks&Itemid=60). I remember several musty-dusty curatorial photo studio/labs in the deYoung/Natural History complex and they weren't even fully aware of each others' existence...same with the studios in University of California Medical Center, also within blocks. Small world, once.

..on a moment's reflection: I meant to demonstrate that "reality," "memory," definitions, photographic images, photographic files/films/prints, reproductions in books, individual perceptions and interpretations may seem equivalents, but may be worlds apart :-)

As far as reproductions, what you say and how you say it makes sense. There's no

universal law governing them that I can think of. I've always felt that there is much visual

art, particularly some modern stuff, that is more about the ideas they convey, conventions

they break, what have you, than about the need to visually be in their presence. Blasphemy

to some, reality to me.

 

I will check out your picnic suggestion. Sounds nice.

 

I don't use the underground parking lot in the park. I park out on the street and walk in. I

need that approach. It's a completely different feel from the old de Young. It is loved by

some and hated by others. What else is new? It works for me. It is a building whose texture

is rather essential to the experience of it. How well that reads in photos, I don't know. Just

last week, I did a portrait shoot with a good friend in that part of the park, bandshell,

museum. Haven't gone through them yet. If something strikes me, I'll share it with you.

Interesting story, speaking of passersby at the de Young remarking on Goldsworthy's work.

Much of the discussion centers on whether it's an unintended crack or art, by those who

don't already know what it is. Then there's always the further pondering on how a crack can

be art and millions have been paid for it. A month ago, one of the many large plate glass

windows in the main entry hall of the museum was shattered. I stood there for a good 15-

minutes and pretty much everyone who wandered by wondered if it was part of the art or an

accident. Interesting that good art can make you second-guess reality. Then again, some

would think that all it would have taken would be to have paid someone millions to do it.

In terms of the philosophy (i.e., not the legality) of the issue, I think Marshall hit the nail on the head. If you're simply recording a piece of art, like photographing the Mona Lisa, then what you've produced isn't art at all, it's just a document.

 

If on the other hand, you use a piece of art to create something inherently different than the artwork itself, then you've done just that--created.

 

I took the picture below outside the art museum in my hometown. The sculpture was created by someone else. The photograph is my own artwork.<div></div>

By contrast, I'd hesitate to call this picture my own art, because All I did was photograph the sculpture/scene in the way it was meant to be perceived by a visitor to the museum. I didn't do any creating here.<div></div>

Very nice pictures, Adam.

 

Setting aside the legal rights questions, I react to the two pictures in the reverse of how you do. The second one feels to me more like its 'yours.'

 

The first one, again, going on my immediate how-it-feels reaction, seems to me to be much less yours; to me, it belongs very much to the person who made those forms. (And I can't define quite what I mean by 'it' in that last sentence.)

 

-Julie

The second photo is a handsome, conventional, linear rendition by the sculptor of his work, as he intended it to be seen.

 

The art remains the sculpture, just as the artist in this case has said. The photo is simply an easy depiction, no matter that a viewer may prefer it.

 

The second is "EZ" to like because we immediately understand it and like the reflections.

 

The first requires respect, a moment of time, and skilled viewing to be appreciated. It might even require the effort and expense of finding an original print, just as an Ansel Adams photo certainly does (his best reproductions aren't Ansel Adams photos) in order to be MOST fully appreciated.

 

A perfect parallel reality: the vast majority of readers dote on "lite" books pushed at them by rack displays at airports, grocery stores etc: they dislike challenging books and don't even want to go to the effort of deciding what to read.

I think we have to accept the concept of shared authorship of images like Adam's first pic - he could not have taken it without the work of the sculptor and it is quite possible that the sculptor was considering this view of it when designing it.

 

I have spent some time photographing modern dance performances and I would always credit the dance company implicitly including the performers, the choreographer, set designer, lighting, costume and props designers - as I feel that their contributions are rather more than mine, though I hope that my representation also has a significant contribution from me (happily my photos were evidently appreciated by the others).

 

I think the shared credit especially applies to performance and 3-d work like sculpture and architecture but photos of 2-d images are either just records or derivations (unless using a design for an entirely different purpose, eg the Campbell's soup label).