Another copyright question

[ccommins]

An artist painted a mural on the side of a building in our town. So like everyone else I went to take a few

pictures. The artist told me to come and buy a picture at the unveiling tomorrow, instead of taking pictures.

I tried to explain I was taking them to show my 93 yr. old mother, since she can remember the celebration

that is painted in the mural. He told me this is copyrighted. I stopped taking pictures and went home. Why

paint this on a public building, you have to think someone is going to photograph it. Was this an infringment

on his copyright. I wasn't going to sell them. What would you have done.

[JDMvW]

<p>I think you were in the right; but I am no lawyer and the current copyright law, done by large corporations (thanks, Walt) for large corporations, is a strange and marvelous thing.</p>

<p>But I know what I'd do. I'd simply go back when the artist isn't there and take my pictures for Moms. The artist surely can't be guarding the thing day and night. Perhaps, however, the artist isn't Shirley?</p>

[steve m smith]

<p>If he doesn't want it photographed, he should keep it covered up. </p>

<p>If he thinks that no one is going to photograph something of that size displayed in public, he is fooling himself.</p>

<p>As long as you're not selling postcards and posters of his artwork, I don't see the problem.</p>

[daverhaas]

<p>If you are taking the photos for yourself, from a public street, of a building that is in public view - then there is nothing he can do. </p>

<p>On the other hand if you try to sell your photos, either via postcards, web, books, etc.. then he may have a problem with you, since you're profiting from his work. </p>

<p>What would I have done? Again - assuming I'm in the US, and he's in the US and his artwork is on a public building, one that is visible from a public sidewalk and street, and I'm standing on a public sidewalk (not a mall or lifestyle center or other private / semi-private location) - I would have told him to either a) take it down, because everyone in town will have a photo of it within days b) go back to his studio and sniff some more paint and get over it. </p>

<p>Dave</p>

 

[ellis_vener_photography]

I agree with Dave Haas first two paragraphs: you have the right to document the work but do not have the right to profit

from it if that is the primary subject of your photograph - in other words you are just making a pretty straightforward

photograph of it and will be selling or licenscing the use of your image.

 

If on the other hand the main subject of your photograph is something else - A former Disney starlet stealing a bauble

from Kim Karcrashian while a space ship lands next to them for example- then the fact his painting on publicly visible

property is part of the background then he won't have much of a case to pursue against you.

[john_h.1]

<blockquote>

<p>you have the right to document the work but do not have the right to profit from it if that is the primary subject of your photograph</p>

</blockquote>

<p>Profit is not considered in 'determining whether there is an infringement except as one of four factors involved in fair use exceptions. It can effect damages for infringement but that comes after determining if there was an infringement. I didn't quote David's reference to profit because he accurately discussed the painter potentially having a problem' if there are sales. Sales may inspire a owner of a work to take some sort of action when they otherwise may not. In this instance they already put up some amount of fuss even without sales.</p>

[Jerry_]

<p>Did the artist have his mural marked with "Joe Artist Copyright © 2012 All Rights Reserved" in plain view? If not, you may go ahead and shoot the street, and if the mural is part of the public area in view, there is not much else can be done. (Just wait a day or two after the public opening....)</p>

<p> </p>

[steve m smith]

<blockquote>

<p>Did the artist have his mural marked with "Joe Artist Copyright © 2012 All Rights Reserved" in plain view?</p>

</blockquote>

<p>Irrelevant. Artworks do not have to have a copyright symbol and date to enjoy copyright protection.</p>

<p> </p>

<blockquote>

<p>Sales may inspire a owner of a work to take some sort of action when they otherwise may not.</p>

</blockquote>

<p>Also, if there are no sales and the photograph is for your personal use, the artist has no way of knowing who you are in order to make a claim and usually (but not in the OP's case) wouldn't know that a photograph had been taken.</p>

<p>I think it is reasonable to expect the general public to document the display of such a large piece of artwork in public and it would be considered unreasonable to pursue them for any monetary compensation or even to stop the use of the photograph, the use being a reminder of something which happened and to show to other people.</p>

 

[zensphoto]

<p>As long as you were on the side walk taking the photograph and not on his private property you do not need to heed to any copyright of that mural on the building. Now, if you were taking a photograph of the picture he was unveiling and was planning on selling that would be a completely different situation all together. That wasn't what you were doing. I suggest you get a book on the laws of photography and photographing in public places. The guy can say anything he wants to you when you are there shooting, but that doesn't mean he is correct in what he is telling you.</p>

<p>What would I have done, I would have said, thanks for the warning but I have a right to photograph your mural from the this public place. </p>

<p><img src="http://d6d2h4gfvy8t8.cloudfront.net/14155215-md.jpg" alt="" width="680" height="453" /></p>

[john_h.1]

<blockquote>

<p>if there are no sales and the photograph is for your personal use, the artist has no way of knowing who you are in order to make a claim and usually (but not in the OP's case) wouldn't know that a photograph had been taken.</p>

</blockquote>

<p><br /><br />If one distributes or displays such photos, even without sales, others have a "way of knowing who you are" and to know "a photograph had been taken". Displaying such a photo may inspire a copyright owner to take some action. Selling may increase the likelihood as many people consider profiting as making any offense worse.<br /><br /><br />Otherwise, except for fair use purposes, the focus on selling is unfounded.</p>

[peter_e]

<p>This may apply:<br>

US copyright law <a href="http://www.copyright.gov/title17/92chap1.html">http://www.copyright.gov/title17/92chap1.html</a></p>

<h2>§ 120 . Scope of exclusive rights in architectural works</h2>

<p>(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.</p>

[steve m smith]

<blockquote>

<p>If one distributes or displays such photos, even without sales, others have a "way of knowing who you are" and to know "a photograph had been taken".</p>

</blockquote>

<p> <br>

Indeed. But the OP stated: <br>

</p>

<blockquote>

<p>I tried to explain I was taking them to show my 93 yr. old mother, since she can remember the celebration that is painted in the mural.</p>

</blockquote>

<p> Which is totally acceptable.<br>

<br>

<br>

</p>

<p> </p>

<blockquote>

<p>Now, if you were taking a photograph of the picture he was unveiling and was planning on selling that would be a completely different situation all together. </p>

</blockquote>

<p> <br>

But you could still sell that image to a newspaper who could print it as reportage as it is documenting the unveiling of the image rather than just showing the image itself.</p>

[David_Cavan]

<p>I'm wondering if the artist is going to take be taking up living beside the building so he can tell everyone walking beside the building that they can't take a photo with their smartphone as they walk by. Its kind of a ridiculous expectation that a mural on the side of a building is not going to be photographed many, many times unless of course the painting is so bad that no one cares. Perhaps he just didn't want it shot before the unveiling?</p>

<p>I think the copyright/sales issue is also going to be a tough one for the artist to battle. If I'm taking a picture of the street for a Chamber of Commerce brochure, which I'm doing as a commercial, paying job is there an expectation that the painting won't be in it? Perhaps a little forethought on what this meant would have helped.</p>

[steve m smith]

<blockquote>

<p>If I'm taking a picture of the street for a Chamber of Commerce brochure, which I'm doing as a commercial, paying job is there an expectation that the painting won't be in it?</p>

</blockquote>

<p> <br>

There might be... but the artist will be disappointed by the reality!</p>

[john_h.1]

http://www.avvo.com/legal-answers/mural-copyright--can-i-make-enlarged-prints-to-sel-377848.html

[john_h.1]

<p>http://www.avvo.com/legal-answers/mural-copyright--can-i-make-enlarged-prints-to-sel-377848.html</p>

[David_Cavan]

<p>John H - I have no doubt that the "derivative" nature of a photo that includes the mural would require some kind of permission from the artist - a license is the most likely I guess if he is willing to push the issue. I was musing about how much effort this artist is going to put into protecting this copyright for a work that sounds to be completely publicly exposed 24X7, especially if he is trying to wave off all cameras. That's not going to make him many friends. And if this is a well-known street in the town, and he's a local resident it makes it more of an interesting situation. We've all seen these public murals in towns, and I've seen them on websites, even in some movies. I guess if he wants to turn it into a stream of passive income its his business, of course.</p>

[john_h.1]

<p>David, Although I didn't say it, I posted the link for the benefit of those reading Duane's post where it said...<br /><br /><br /><em>"As long as you were on the side walk taking the photograph and not on his private property you do not need to heed to any copyright of that mural on the building."</em><br /><br /><br />The rest of the post's text suggests that was in the context of photographing, not re-publishing. In context of the image posted with it, one might read the claim to mean that any photograph of someone else's publically seen mural can be published in any way seen fit which is not the case.<br /><br /><br /></p>

[johncrosley]

<p>You may find this a little off the topic but it relates.</p>

<p>One day I was at the famed Seattle Pike Place Fish Market, but standing on a public street.</p>

<p>A 'morning TV show' (I forget which one) wanted the famous salmon and other fish throwers of the fish market at the front of the Pike Place Market in the background of their TV shots to represent Seattle on their live show.</p>

<p>One of the producers complained to me that it cost their network a huge sum to rent the view of the market for a backdrop -- I forget the exact amount, but several years ago I remember it being well in excess of $5,000 and I seem to recall it was several times that, all just to use the backdrop (from a public street nonetheless) for their standup interviews for a total of five minutes total nationwide air time.</p>

<p>Now, this was television, and it was live television. </p>

<p>The producer didn't want the men who toss the fish back and forth for customers (and for show) to go on strike during that five minutes, so perhaps they also were paying for a performance, and the network paid, and they paid through the nose an outlandish sum. </p>

<p>The producer was complaining candidly to me about what thieves he felt the market representatives were for how high the price was! I told him he didn't have to pay it, but he knew he risked the certainty if he didn't pay that the fish tossers would disappear and maybe some other disturbance would block his view negating his short air time.</p>

<p>I was standing next to them on a public street, and I felt that legally I could have taken all the photos I wanted, without recourse, since this was visible to the public at large -- even though the network had financed the whole shebang.</p>

<p>They may have needed a city permit to set up their satellite trucks.</p>

<p>I felt I could take the same photos just passing by when they're tossing fish when I'm standing on the public street in front. </p>

<p>I have had in my portfolio a photo of a copyrighted wall mural from Hollywood for a very long time and never felt any compunction about showing it. It features famous film stars of the past seated in a theater and a skateboarder passing by on a sidewalk, out of balance caught on a sidewalk crack as the skateboarder careens past, which is why it's posted. </p>

<p>I consider that a derivative work, but it needn't be for me to have taken the photo or even to disseminate it for noncommercial purposes (see the law citation posted above for authority).</p>

<p>john</p>

<p>John (Crosley)</p>

[danmarchant]

<blockquote>

<p>This may apply:<br /> US copyright law <a href="http://www.copyright.gov/title17/92chap1.html" rel="nofollow" target="_blank">http://www.copyright.gov/title17/92chap1.html</a></p>

<h2>§ 120 . Scope of exclusive rights in architectural works</h2>

</blockquote>

<p>Not applicable to the OPs case as it refers to the copyright on a building, not to the copyright of a work of art that just happens to be attached to a building. </p>

[john_h.1]

<blockquote>

<p> I felt I could take the same photos just passing by when they're tossing fish when I'm standing on the public street <br /><br /></p>

</blockquote>

<p><br />Relative to the copyright discussion here, even if one could never shoot photos of copyrighted subject matter, it wouldn't matter since fish tossing doesn't amount to such.</p>

 

<blockquote>

<p>I have had in my portfolio a photo of a copyrighted wall mural from Hollywood for a very long time and never felt any compunction about showing it. It features famous film stars of the past seated in a theater and a skateboarder passing by on a sidewalk, out of balance caught on a sidewalk crack as the skateboarder careens past, which is why it's posted. I consider that a derivative work, but it needn't be for me to have taken the photo or even to disseminate it for noncommercial purposes (see the law citation posted above for authority).</p>

</blockquote>

<p><br /><br />What law citation posted above? If you are correct that it is a derivative work, then the rules for derivative works apply. The Copyright Act states...</p>

<h2><a name="103"></a><em>§ 103 . Subject matter of copyright: Compilations and derivative works</em></h2>

<p ><em>(b) T<strong>he copyright in a</strong> compilation or <strong>derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work</strong>, and does not imply any exclusive right in the preexisting material. <strong>The copyright in such work</strong> is independent of, and <strong>does not affect </strong>or enlarge the scope, duration, ownership, or subsistence of,<strong> any copyright protection in the preexisting material.</strong></em></p>

<p ><strong> </strong></p>

<h2><a name="107"></a><em>§ 107 . Limitations on exclusive rights: Fair use</em></h2>

<p ><em>Notwithstanding the provisions of <a href="http://www.copyright.gov/title17/92chap1.html#106">sections 106</a> and <a href="http://www.copyright.gov/title17/92chap1.html#106a">106A,</a> the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the <strong>factors to be considered shall include—</strong> </em></p>

<p ><em>(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;</em></p>

<p ><em>(2) the nature of the copyrighted work;</em></p>

<p ><em>(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and</em></p>

<p ><em>(4) the effect of the use upon the potential market for or value of the copyrighted work.</em><br /><br /><br />So if the use is derivative, as you say, you would need a license from the copyright owner of the mural image. If the fair use exception applies, then all four factors in the statute would need to be weighed against each other. Commercial use would be only one factor in fair use analysis, not the only factor as your post suggests.<br>

<em> </em></p>

<p> </p>

[ccommins]

Thank you everyone for your response. I want to go back and take a good picture of this mural for my mom before someone sprays graffiti all over it, the workmanship is beautiful, but this guy was so rude I would hate to run into him again. At the unveiling there were dozens of people taking pictures. If he didn't want it photographed don't paint it on a public building.

[ccommins]

I was online looking at photos entered in a contest, and there was a picture of the mural. So much for no taking pictures.

[steve m smith]

<p>Ignore all the comments above about derivative works and fair use as they don't apply in you case. Just go and take a picture when no one else is around and show it to your mother!</p>

[john_h.1]

<blockquote>

<p>Ignore all the comments above about derivative works and fair use as they don't apply in you case</p>

</blockquote>

<p>To be accurate, they do apply. Rather, its the fact that nothing will come of it because it will get no attention or even notice for the use contemplated. Many uses won't. IOW, The discussion is academic.</p>