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  #1  
Old 08-10-2005, 07:46 PM
Jamo Jamo is offline
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Re: Copyright Law

Hey guys I have a question about copyright boundries regarding artwork specifically sculpture. I was wondering if you produce an original piece and you own the copyright are other people open to making any commercial gain on that piece at all. for example selling photos of it?
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  #2  
Old 08-10-2005, 09:41 PM
GaryR52 GaryR52 is offline
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Re: Copyright Law

The answer is yes, they are. If a photographer photographs your sculpture, you still own the rights to the sculpture, but the photograph is his intellectual property and has all the same protections your sculpture does. This falls under the heading of "derivative works," which are perfectly legal. If, on the other hand, someone were to make duplicate casts of your sculpture and attempt to sell them without your authorization, then that would be a clear violation of your copyright. Similarly, if you were to take the photographer's photo of your sculpture and reproduce it without his permission, you'd be violating his copyright, even though your sculpture is the subject of the photo. It is the expression of any original work that is protected, not the underlying idea. I could shoot a bookful of pictures of Henry Moore's sculptures and sell the book as my own because the book and the photos are my own creations, not Moore's. If I slipped one of John Hedgecoe's photos of Moore's work in with my own without his permission, he could sue my pants off. The key point here is that a photograph of your sculpture, whether authorized by you or not, is the photographer's intellectual property. His rights extend only to the photo, though, and do not include any rights to your sculpture, just as your rights cover only your sculpture and do not extend to include the photographic record of it made by someone else. If you shoot a photo of your own sculpture, you own the rights to both the sculpture and the photo. It's all about who the original author is.

Gary
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  #3  
Old 08-10-2005, 11:29 PM
Jamo Jamo is offline
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Re: Copyright Law

So where do small maquettes and models of the sculpture fall made by someone else in the same likeness of the sculpture? I would think that taking a photo of a coca cola logo and calling it an "artistic derivative" would be the same as taking a picture of a sculpture and calling it an aritstic derivative.
This is starting to get into a grey area.
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Old 08-11-2005, 12:51 AM
GaryR52 GaryR52 is offline
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Re: Copyright Law

Quote:
Originally Posted by LostNYC
What if a guy takes a photo of your sculpture and then makes a clay model of his own identical to yours in the photo- using the photo only no molds etc, bet the lawyers would have a real head scratcher there.
Well, in that case, you'd probably have a case for a suit, especially if the resemblance is substantial. It used to be the case, years ago, that you could "difference" your work (i.e., make a minor change), if you were copying someone else's work, and that was sufficient to get around the law. However, at some point during the eighties, some new cases set a new precedent and ever since even a vague resemblance to someone else's work is actionable. Your only defense would be to prove you had never seen the other artist's work before doing yours.


Quote:
What if you take a photo of something that everyone else does, like the Eiffel tower from the same exact location on the sidewalk someone else does, you now have independent identical photos.
That's a little harder to make a case for, but I've heard of suits that were filed for just such reasons and a few were successfully litigated. If there's a substantial enough difference, though, like yours is a night photo and his is a day shot, or you used a different focal length of lens or color instead of B&W, etc., there usually is no chance of a lawsuit. If you happen to identically duplicate all the same conditions, though, then you've got potential trouble.



Quote:
I can say that the copyright office is SLOW as molassis, I sent paperwork and money in last year before Christmas- November some time, and I'm STILL waiting for the certificate. I wrote to inquire and they said 2 months ago it would be another 2-3 weeks...
Actually, you don't even need to have proof of registration, unless you're sued. The law says the creator of any intellectual property has an automatic copyright at the moment of creation. As soon as the work is fixed in a tangible medium of some sort (words on paper, a sculpture in any medium, a photo, etc.), all rights to it reside with its creator. Of course, if there is any chance you could ever go to court over it, you should register the work, but you can do that at any time after its creation. Until then, you could, at least in theory, bring an infringement suit, but you'd have a tougher time proving authorship without the registration.

Gary

Last edited by GaryR52 : 08-11-2005 at 12:54 AM.
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  #5  
Old 08-11-2005, 05:11 AM
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Araich Araich is offline
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Re: Copyright Law

Actually I think that there is copyright protection over an image of your work being used for commercial purposes (ie a book). A license has to be issued by you for it's reproduction. This is an automatic right as creator, unless you make the work under contract to a buyer where it specifies otherwise.

This right also persists for a period after your death.

The photographer does own the photograph and rights over it, but not extending to reproduction of your artwork unlicensed. A common exception to this is the reproduction for criticism or education.
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  #6  
Old 08-11-2005, 09:11 AM
GaryR52 GaryR52 is offline
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Re: Copyright Law

Wow! What a pain in the butt that must have been. But, you know, if you have registered, not having the certificate yet is no problem, as, I believe, you should be issued some sort of number or other temporary proof of registration, right? If nothing else, you can contact the copyright bureau and get a letter to that effect.

I'm not sure what the law may state in Australia, but here, I'm fairly certain a photographer can use a photo of your work for his own purposes without a violation occurring. Still, if a photographer is going to do so, it would be wise for him to cover his butt and get your permission first. Then, at least you have some say in how he's portraying your work to the public. If the photography is really bad or makes your work look bad, then you could have a legitimate objection to his use of the photo, otherwise, the photo itself is his property. An example of this would be the case of an exhibition which is photographed by a local news photographer. If your work is in the exhibition, it is regarded as part of a public event and is fair game. The newspaper or magazine can publish the photo and say anything about it they want to in print. Of course, if you're libeled, you could sue for libel, but not for copyright infringement.

I know that John Hedgecoe not only had Moore's permission to do photo essays of his work, but Hedgecoe and Moore were close friends for many years. I don't know if such a relationship has always existed between any other photographers of Moore's work, though and whether or not they had to obtain his permission for a book project. It's possible, given the stature of Moore in the art world, during his lifetime. This would be a topic worth researching.

Well, the reproduction of your artwork is not what's happening if a photographer publishes a photo of your sculpture. Your sculpture is your expression, the photograph is his expression. So, if a photographer of your work publishes his photos, he isn't reproducing your work, he's reproducing his own work. There is no violation in this. There is one possible area in which you might have a leg to stand on and that is that the owner of any private property may legally object to it being photographed and sue in the event the photo is published without permission. This is a common problem professional photographers face whenever shooting a location in which someone's place of business or residence is in the photo and, in many cases, property owners have successfully sued photographers who didn't get permission first. This also extends to using someone's likeness without first obtaining a model release, though celebrities and others who are "in the limelight" are exemptions from this. It's possible this could also be applied to an artist's work. However, if you've given permission, you've given the photographer unlimited license to use the image and he can use it in any way he wants to, unless certain uses are stipulated or implied in writing in the release.

Gary

Last edited by GaryR52 : 08-11-2005 at 09:25 AM.
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  #7  
Old 08-11-2005, 09:27 AM
JamesDFarrow JamesDFarrow is offline
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Re: Copyright Law

"Well, in that case, you'd probably have a case for a suit, especially if the resemblance is substantial. It used to be the case, years ago, that you could "difference" your work (i.e., make a minor change), if you were copying someone else's work, and that was sufficient to get around the law. However, at some point during the eighties, some new cases set a new precedent and ever since even a vague resemblance to someone else's work is actionable. Your only defense would be to prove you had never seen the other artist's work before doing yours."

This could really be a "Pandora's Box". Abstract sculpture aside, what if you sculpt an "Apple". If you are a half decent sculpture, it will look like an apple. Someone else sculpts an apple. It looks like an apple. And since apples all pretty well look the same, it looks like your apple too. So did they copy your apple and infringe on your copyright? O.K. this might be a bit of a lame example but I think you get my point. There are many "life" subjects that, if done well, have no choice but to look like someone else's well done sculpture of the same "life" subject. Figures (torsos) done in the classic style would be another example.

James
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  #8  
Old 08-11-2005, 09:46 AM
GaryR52 GaryR52 is offline
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Re: Copyright Law

It is and has been a real problem. I think that, even in such cases where there is a very fine distinction between one work and another, it's been difficult for either side to establish their case convincingly, thus, it's not as common in actual practice.

In the case of two works which both depict a common object, if you were to sue, for example, in the apple illustration you've mentioned, the issue might come up as to whether or not you had both rendered an image of the same apple or not. That could be the deciding difference right there. Let's say you were both in the same life drawing class and you each drew the apple from the same viewpoint. Now, let's say one of you later sells the drawing. There might be a case for infringement if it can be established that you both drew the exact same apple from the same viewpoint, however, the two drawings would have to be substantially alike. If you do yours in a totally different style than his, there really is no case, as your expression of the same subject is sufficiently different. However, if he published his work and you do a drawing that uses his work as the subject, even a stylistic difference might not be sufficient defense if it's obvious it's the same scene. This whole area of copyright is very tricky and when they threw out the "difference" clause a couple of decades ago, they left the door open to all kinds of abuses, in my opinion.

By the way, in case you're wondering, no, I've never studied law, but I did stay at a Holiday Inn Express last night. Seriously, as a creator of many types of intellectual property over the years, I've always been interested in copyright law and have tried to stay abreast of what the laws are, if for no other reason than to cover my own ass. I once wrote a history of the Choctaw Nation of Oklahoma, for example, while in the employ of the tribe. It was written as a part of an historical renovation project. Therefore, my work, as diligent and painstaking as it was, belonged to my employer, not to me, as it was legally considered "work for hire." Had I attempted to publish it under my own name, the Choctaw Nation could have sued me.

Gary
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  #9  
Old 08-11-2005, 12:47 PM
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oddist oddist is offline
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Re: Copyright Law

About copying photos...read this about Koons and be sure to consult an Art Lawyer.
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  #10  
Old 08-11-2005, 02:43 PM
GaryR52 GaryR52 is offline
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Re: Copyright Law

Good for you, Randall! I believe the original pieces you salvaged would have been in the public domain, due to the their original use, as well their age. Since they were probably designed by the architect and sculpted and cast by long dead artisans on a "work for hire" basis, unless there is the remote chance the architect's heirs want to sue, you're safe in using them. Your alterations to the original, as well as any additions you made would constitute a derivative work, so I think you're fine.

Thanks for the article link, Oddist. Clearly, copying a photo without permission is a copyright infringement. We were discussing going the other way, though; i.e., whether you could sue a photographer for benefitting monetarily from a photo of your sculpture. My opinion is that, in certain cases, you might have a case against the photographer if he photographed your work without permission. As I said above, the exception to this would be the case in which your work is on public display, in which case permission may not be required, especially if the photo is used as part of a newspaper or magazine article about the exhibition. That use would be within the public domain. It would also be free promotion and nothing to bitch about.

Gary
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  #11  
Old 08-11-2005, 03:56 PM
Jamo Jamo is offline
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Re: Copyright Law

My concern was not about about mass consumtion of the photo of a sculpture but a photo of the sculpture used for monetary gain. Of course I don't think any artist could reasonably be upset if their sculpture is in Time magazine with accreditation and they aren't getting paid for it. Or familly photos of the piece while you are walking in the park enjoying the piece. Even displaying it in other public domains. What I would have issue over is if someone were to take a picture of the sculpture paste the sculptors name on the picture and sell the photo of the sculpture at any shop. What about if a photo were used with the sculpture's image and it was used to market another product for example a car wax and this was the central photo on the product and no authorization was given. I think this is taking artistic intellectual propoerty and selling it as if you had rights to it.
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Old 08-11-2005, 05:31 PM
GaryR52 GaryR52 is offline
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Re: Copyright Law

Right, Jamo. As I said above: "We were discussing going the other way, though; i.e., whether you could sue a photographer for benefitting monetarily from a photo of your sculpture." As I said, though, your rights don't extend to the photograph unless you're the photographer. As I also said, you could complain that the photo was taken without your authorization, but only if it was photographed in your own studio or your home. If it was on display in a gallery or an exhibition, then anyone could photograph it. If I were writing an article on the exhibition, I could include photos of some of the artists' work, including yours, and I wouldn't be violating anyone's copyrights by doing so, even if I sold the article and the photos for publication. Of course, most galleries probably wouldn't let a photographer shoot photos of the artworks, but a public exhibition outdoors probably wouldn't be policed as well. Most museums don't allow unauthorized photography, either. Maybe if you gave us some hint as to what the case is, specifically, you'd get a more appropriate answer. Or was this a hypothetical question?

But, hypotheical or not, the key point is that a photographer's creation is just as protected as your sculpture is. Even though your work is the subject of the photo, the photo is still the intellectual property of the photographer and he is free to use it as he sees fit.

The exception to this is that, due to the nature of the photographic medium (it records whatever is there, including identifiable persons or property), a photographer can be held liable for the content of his photos. In other words, you had the right to object to your work being photographed and if you had protested, the photographer would have had no right to photograph your sculpture. If you were present at the time and didn't say anything, you've given your tacit consent to the photographer. If you weren't there, but would have refused him had you been present, then you could bring action against the photographer for the unauthorized photographing of your work. You could even block his publication of the photos on the grounds that you didn't approve of him photographing your sculpture. Normally, a professional photographer makes sure to get a signed release from the owners of any property he photographs, either before the image is made or after, and preferably before. If he failed to do so, he leaves himself open to a lawsuit.

However, the lawsuit is not related in any way to your copyright or his; it is over a privacy issue. This stems from the fact that a published photo of someone or someone's property could result in their public humiliation, embarrassment, or worse. Though there is no law (yet) that says you can't take photos of anything you want to (if there were, paparazzi would be out of business overnight), the law does provide some protection for the public by allowing anyone (with the exception of celebrities) to have legal control over the use of any images made of them or their property. However, this is as far as your legal rights extend.

If a photographer was hired by you to shoot photos of your sculpture, then he was working for you when he did so and the rights to his photos belong to you. This is called the "work for hire" clause. If this is what has happened in your case, then, yes, you do have the right to sue the photographer for violating your copyrights because the images were made expressly for your use, not his, and you paid for those photos, as well as the right to all uses of them, unless your written contract with the photographer states otherwise. It is not uncommon for a photographer's contract to allow him the right to use the image for the promotion of his business and, in some contracts, a photographer may reserve the right to resell the images. If there is any such language in your contract (assuming you had one), that would be legally binding and you wouldn't have any recourse.

Gary

Last edited by GaryR52 : 08-11-2005 at 06:01 PM.
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  #13  
Old 08-11-2005, 07:43 PM
Jamo Jamo is offline
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Re: Copyright Law

well It was a hypothetical situation that i'm thinking of about a sculpture recently installed. It is nothing that is happening but I was trying to think ahead if it were to happen. I think there is a high probability that a public sculpture that the city had commissioned me to do will have photographs for sale by a third party other than the city or myself. I'm wondering what kind of rights to that image there would be. As i'm following I do not have any right to the photographs because it is the work of the photographer eventhough the subject matter is my sculpture. Privacy laws do not apply because it is in the public domain. It seems unfair to me because it sounds like it is skiriting around the issue using an artistic excuse. I think the essence of the work is captured and being copied eventhough it is change in the medium. If it were a sculpted copy of the piece done by someone else who had no prior agreement with the sculptor then would there be legal recourse? Is a drawing of a drawing protected under copyright? I think you can't bail out on the excuse that a photograph is art and is the artistic expression of the photographer. I think by that reasoning you could take photographs of the Da Vinci Code publish it as a book of photographs of a book and call it artistic expression because it is a photograph eventhough the entire content of the book is captured and you could read page for page as plain pictures focused in on the pages of the book's content. You could sell your book at a cheaper price and now you are competing because it is the same content. Who would buy the more expensive book by the actual author? Something is clearly being violated eventhough the text is the content of the photograph and the photograph is the photographers. Is it the fact that there is a medium change that it is protected by artistic expression? Or if it were a sculpture of a sculpture attempting to copy the original sculpture would that be a violation? I don't know the answer but I am thinking when dealing with a sculpture of a sculpture or a drawing of a drawing the first drawing is property of the originator and the second drawing is an artistic derivative and is the property of the second artist only if there is artistic expression exercised. I think whatever medium it is if there is no artistic expression no change or original thought placed into the work it is a copy and violates the copyright holder. Where do forgeries of famous paintings fall? They are indistinguishable from the orignal only by experts but are still a work of someone else. In my opinion you can't take a plain picture of a sculpture and sell it as your own. However if you were to take a picture of the sculpture yet throw into your own artistic expression then it would be the photographer who holds the rights. Or do a sculpture of a sculpture yet put your "artistic expression" into it then you would be the copyright holder. I think the essence of the copyright is if there has been artistic expression exercised and not the fact that the medium has changed. All of my arguments are also assuming that the artist is still alive and hasn't been dedad for fifty years when their art falls into publice domain. I believe France has a specific law dealing with over casting of bronze artwork.
Anyways I hope this doesn't come off as an angry rant I just love debating and don't mind arguing over even the most ridiculous points.
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Old 08-11-2005, 08:43 PM
JamesDFarrow JamesDFarrow is offline
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Re: Copyright Law

I think once it is in the public domain anyone can take pictures of it and publish them. Like postcards for example. I can't see the people who do them paying anyone any royalties. Unless I am mistaken.

I also think that a lot of time people are in the wrong but there is no point is suing them as it would cost more than what it is worth.

I also build models and have see a lot of people do kits of unlicensed subjects and sell them right on-line. If Paramount or Universal or Disney for example, want to, they do chase them and get their lawyers to send them C & Ds (Cease & Desists) letters. The people do stop selling the stuff (they don't really care as they have made some money up till then anyway) and go on to do another unlicensed subject. And so it goes on and on. If the big corporations did take them to court what are they going to get - less than the cost of time and aggrevation it takes to take the culprits to court in the first place. You could spend the rest of your life in court.

Anyway, one way to beat the person that might take pictures and sell them is to beat them to the punch and do it first.

James
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Old 08-11-2005, 09:46 PM
GaryR52 GaryR52 is offline
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Re: Copyright Law

Quote:
Originally Posted by Jamo
well It was a hypothetical situation that i'm thinking of about a sculpture recently installed. It is nothing that is happening but I was trying to think ahead if it were to happen. I think there is a high probability that a public sculpture that the city had commissioned me to do will have photographs for sale by a third party other than the city or myself. I'm wondering what kind of rights to that image there would be. As i'm following I do not have any right to the photographs because it is the work of the photographer eventhough the subject matter is my sculpture. Privacy laws do not apply because it is in the public domain. It seems unfair to me because it sounds like it is skiriting around the issue using an artistic excuse. I think the essence of the work is captured and being copied eventhough it is change in the medium. If it were a sculpted copy of the piece done by someone else who had no prior agreement with the sculptor then would there be legal recourse? Is a drawing of a drawing protected under copyright? I think you can't bail out on the excuse that a photograph is art and is the artistic expression of the photographer. I think by that reasoning you could take photographs of the Da Vinci Code publish it as a book of photographs of a book and call it artistic expression because it is a photograph eventhough the entire content of the book is captured and you could read page for page as plain pictures focused in on the pages of the book's content. You could sell your book at a cheaper price and now you are competing because it is the same content. Who would buy the more expensive book by the actual author? Something is clearly being violated eventhough the text is the content of the photograph and the photograph is the photographers. Is it the fact that there is a medium change that it is protected by artistic expression? Or if it were a sculpture of a sculpture attempting to copy the original sculpture would that be a violation? I don't know the answer but I am thinking when dealing with a sculpture of a sculpture or a drawing of a drawing the first drawing is property of the originator and the second drawing is an artistic derivative and is the property of the second artist only if there is artistic expression exercised. I think whatever medium it is if there is no artistic expression no change or original thought placed into the work it is a copy and violates the copyright holder. Where do forgeries of famous paintings fall? They are indistinguishable from the orignal only by experts but are still a work of someone else. In my opinion you can't take a plain picture of a sculpture and sell it as your own. However if you were to take a picture of the sculpture yet throw into your own artistic expression then it would be the photographer who holds the rights. Or do a sculpture of a sculpture yet put your "artistic expression" into it then you would be the copyright holder. I think the essence of the copyright is if there has been artistic expression exercised and not the fact that the medium has changed. All of my arguments are also assuming that the artist is still alive and hasn't been dedad for fifty years when their art falls into publice domain. I believe France has a specific law dealing with over casting of bronze artwork.
Anyways I hope this doesn't come off as an angry rant I just love debating and don't mind arguing over even the most ridiculous points.
I see. Well, you're following me just fine, so far. I think the key to understanding this lies in understanding that a photograph of your sculpture is not your creation unless you're the photographer as well as the sculptor. If it's someone else's photo, then that photo is their intellectual property, not yours.

As for someone making a duplicate cast of your sculpture, like I said in my initial reponse to this thread, yes, that would definitely be a violation of your copyright. But, what I'm afraid you're trying to do is somehow equate that with someone's photographing your sculpture, which is not at all the same thing. Yes, it is a different medium, as well as someone else's creation, and that is why you have no recourse. The only way you have any say about it is in the aforementioned situation in which you've commissioned a photographer to take pictures of your sculpture. Then you would own the rights to the photos. But, since that's not the case here, you would have no recourse in the event someone else seeks to photograph your sculpture for profit. Because it will be in the public domain, as you admit, you really have no recourse at all. But then, why should you? What you are saying is analogous to me taking pictures at a Rolling Stones concert and then selling my pictures, but Mick Jagger thinks he's somehow entitled to a cut of my earnings just because he's in the pictures. Maybe not an exact analogy, but my point is you don't have any claim to someone else's creative output any more than they have a claim to yours.

Another area you seem to be confused about is the difference between what you've created; i.e., the sculpture, and photographs of the sculpture. Someone else's images of your work are not your work and shouldn't be confused with your work. It's like saying that someone stole your car because he took a photograph of your car. The one artistic expression is separate and apart from the other. This reminds me of the superstitious idea some primitive peoples have that, if you photograph them, you're stealing their soul. No one is taking anything away from you at all. Besides, this being a public sculpture, you won't realize any additional income from it, except perhaps by selling small reproductions of it, if that is allowed by the city. There is a huge difference between your sculpture and an image of your sculpture. If I wanted to, I could go sit in front of your installed sculpture and draw sketches of it, then sell my sketches. I don't have to share my income from those sketches with you because they are my sketches. The fact that your sculpture is the subject is immaterial. I could just as well draw anything else in the area and the drawings would also be mine. Like I said before, the copyright law allows for derivative works in other media and that's exactly what a photo or a drawing of your sculpture, made by someone else, is.

The example of the Da Vinci Code book would not be covered as a derivative work because the author and publisher are protected against copies made by any means. The utility of a book is in its reading and if the images are legible, then they are a clear infringement. The same is not true of a photo of a sculpture. Because a sculpture is a three dimensional object, it can only be duplicated by means of three dimensional reproduction, i.e., casting copies of it. A two dimensional image on paper does not constitute a copy of a sculpture. It is a photograph, not a sculpture. Not only that, but a photograph only shows one view of the sculpture. It cannot equal the experience of walking around a sculpture, or picking it up and turning it around in one's hands. The utility of a sculpture lies in being able to perceive it's three-dimensionality first hand. That experience cannot be duplicated in a photograph, therefore, the photo is recognized as a completely different medium of expression and it is apparent that it is not the embodiment of the sculpture.

James, the photographer can realize income from his photos in several ways. As I mentoned earlier, he could do a book on Jamo's sculpture, accompanied by text written about Jamo's work. He could sell the photo to a local newspaper, to be used as an illustration for an article about the installation of Jamo's sculpture. In the example of a book, he'd receive royalty income, in the example of the newspaper article, he'd recieve a one-time flat fee. Then there is the stock photo market, which is one of the most lucrative markets for photographers. He could place the images with a stock photo agency and receive lifetime royalties (theoretically) every time his picture is published. It could be used as an example of modern art (assuming that's Jamo's style), or it could wind up as an element in an ad, etc. You'd be amazed at how many times and in how many ways some of the most mundane stock images are used.

But, the main thing to understand, of course, is that this is income that belongs rightly to the person who created the photographic image, not the artist who created the sculpture that is the subject of the image. If this were not so, architects would be suing advertising agencies, stock photo agencies and photographers all the time for using images of their buildings. No artworks would ever appear in print or on TV or in movies, for fear that the income from those sources would have to be shared with the artist who created the original artwork. An image, in another medium, is covered by international copyright law as a derivative work. End of debate.

Gary

Last edited by GaryR52 : 08-11-2005 at 09:57 PM.
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  #16  
Old 08-12-2005, 01:33 AM
Jamo Jamo is offline
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Re: Copyright Law

I had another question reagrding when it is needed to give an artist credit for a work. Does this need to be done when a photograph is taken? Is a photograph of a print infringement on the artist? I don't know. But as I'm following the current argument the answer seems to be no. Because a photograph and a print are different. At which point there is no situation in mass media where an artist is entitled credit for their work because photographs are intellectual property of the photographer and they can sign their own name to the image because it is a derivative work. Unless there is some other part of copyright law that I am unaware of. There have also been situations where people have bought limited edition print runs from artists taken them, scanned them, reprinted and sold them without permission from the artist. I'm not totally sure about copyright law on this but I think this is perfectly legal if I'm not mistaken. Eventhough it may be legal I don't think it is right. Morality and law are different.
I would like to attack this one comment however.
"That experience cannot be duplicated in a photograph, therefore, the photo is recognized as a completely different medium of expression and it is apparent that it is not the embodiment of the sculpture."
Sculpture can be duplicated in photographs. As you are well aware molds are not nececssary to reproduce sculpture. Although photographs are not tactile experiences A sculpture's essence can be stored in a photograph. What is a three dimensional CAD scan? If you want to get strict about the definition of a photograph it is derived from the greek word "photo" meaning light and "graph" to write. Three dimensional computer scans use light and they do write to computer hardisks recording the photographic data. If you were to take enough photos of a sculpture you could reproduce it in its three dimensionality. I don't think its fair to say you can't capture what a sculpture is in photography. Maybe you can't in one photograph. My point is a sculpture's essence is stored in photography I was never saying that a photograph is a sculpture nor do I equate a sculpture as having the same
experience as a photograph. The utility of a sculpture is also its idea not
only the tactile experience of walking around it and feeling it with your hands. You can look at sculpture too. Imagine a blind person experiencing a sculpture all they have is their tactile experince, smell, hearing & taste too if you really want to try it. A sculpture is composed too its isn't only wrought in a pure 3 dimensional physical sense. why do artists submit sketches in competitions?To explain what they are going to sculpt. The foundation of sculpture is in drawing. Its Idea is intellectual property. Its like Marcel Duchamps urinal. Do the manufacturer's have legal recourse for the urinal design. It was the pattern maker who designed the stupid thing in the first place. Its the idea of it being sculpture.
I also don't disagree with the fact that you can take a picture of a sculpture and that be seperate art as well. Photographs are ideas expressed through the medium as well. But photographs can lack expression and be copies as well. There are two parts to sculpture its composition and its execution. Foundries take models and turn them into bronze sculptures. Is the foundry the composer? No. Sculptors compose symphonies in stone, bronze plastic wood or whatever. The idea originates with the artist. It is intellectual property and has content just like the Da Vinci Code. Photographs communicate compositional ideas. Photographs of sculptures are seperate in legal eyes but you can't argue the fact that they don't have anything to do with the sculpture's compositional content. Also Mick Jagger makes music he doesn't look good in photographs.
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Old 08-12-2005, 02:30 AM
GaryR52 GaryR52 is offline
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Re: Copyright Law

Good questions. In the case of 2D art, things get trickier, where photography is concerned and this is partly because a photographed painting or print can easily be duplicated (as opposed to a sculpture, which cannot be duplicated by photographic means). It is customary, though not legally required, to caption a photo of an artist's work with some form of credit line. It is also standard practice to give a photographer credit for the published photo, though, again, this isn't a legal requirement.

But, merely photographing a print is not an infringement because, again, a photograph is a different medium. However, as I was saying, since it's an easy route from photograph to another print, it's a good idea to get permissions, if you're a photographer, and to insist upon them if you're the artist. But, most photographers of artwork are reputable professionals who know all this and who adhere to the standard practices. If you have hired a photographer to shoot photos of your art, whether 2D or 3D, you own the copyrights to the photos, unless otherwise stipulated in writing. It's not uncommon for a photographer to reserve the right to make use of the photos for self-promotion and most contracts will stipulate this. It is highly unlikely that any photographer is going to be photographing an artist's print or painting without the artist's knowledge or consent, also. Most museums and galleries won't allow photography on their premises unless it's a pro who has been hired either by them or the artist. On the other hand, if someone buys a print and photographs it in their own home, that's another matter, even though it isn't so much the act of photographing the work that is questionable as it is the intended use of the photograph. The law allows one to make reproductions for one's own personal use, but there are some restrictions applied and these vary with the medium. Obviously, duplicating a sculpture you've purchased from an artist is not allowable. Photographing it certainly is allowable, though.

Of course, all of this is not to suggest that artists haven't attempted to sue photographers for unauthorized photography of their works. There may even be some cases in which the artist has won. Ever since they threw out the old clause about a work not being an infringement if it was made somehow different from the original, there has been this gray area of interpretation that has made for some very interesting legal decisions. Forinstance, there is now a law in California and a few other states, since about the mid-eighties, which gives the artist control over the display and care of his work even after he has sold it. There have been successful suits brought against art buyers who altered an artist's work after buying it. The rationale was that the artist has a right to protect the way in which his work is displayed because his reputation as an artist depends on it. This runs counter to the basic precepts of private property rights, however, and there has been much resistance to it by buyers who feel they have a right to do what they please with what they paid for.

The copyright laws have nothing whatever to do with concerns of morality, per se. They are there to protect the property rights of creative people. To my mind, that, in itself, is moral.

I thought I had made it clear enough that your argument that, somehow, something of yours has been taken from you when your work is photographed is simply wrong. Sculpture is a three dimensional medium. It is not duplicable in a two dimensional medium. Sculptures don't have an "essence" or "soul, either. They are inanimate objects. A photograph of a sculpture is not in any way a duplicate of the sculpture itself. I don't see how you can insist otherwise. To do so suggests you don't know the difference between an object and a picture of the object. It would be virtually impossible for a photographer to make a three dimensional copy of your sculpture using a photograph, or even a series of photographs. Even assuming the photographer has the skills and talents of a sculptor in addition to his photographic skills, and assuming he has taken photos of the sculpture from every angle, it would still be difficult for him to recreate your work without a great deal of time and effort and the question is, why would any photographer do so?

Digital scanning uses a laser, but it does not use visible light in the same way photography does. In any case, a photograph is not a digital scan, nor is a digital scan a photograph. A photograph consists of light-sensitive particles and dyes (if color) suspended in a gelatin emulsion on a paper substrate. A digital scan consists of binary data stored on an magnetic disk. There is absoluetly no similarity between these two media and the only way a photograph can be stored digitally is if the photograph is either scanned or a digital camera is used, to begin with. Even then, a digital 2D image is still not a duplicate of a sculpture, even if the pixels that make up the screen image forms an image of one view of a sculpture. Even if you used digital video and rotated the camera around the sculpture, or shot a series of stills and used them to make a digital animation showing the sculpture revolving, it still isn't a duplicate of a sculpture. If you have the software and the skills and are able to somehow make a digital 3D model of the sculpture from a 2D image or images, then you're on your way to a duplicate of a sculpture, but you're still not there yet. If you take that 3D virtual model, save it as an STL file and send the file to a rapid prototyping machine, such as a Thermojet wax printer, then you've got a duplicate of the sculpture because, only at that point do you have a three-dimensional object. But, why would you go to all that trouble when you could simply scan the sculpture itself and send the resulting digital model to the wax printer? Of course, this process has nothing whatever to do with photography, so we are way beyond our hypothetical argument, here.

Glad you mentioned Duchamp and we can also throw in Jeff Koons, while we're at it. Neither was guilty of copyright infringement as neither actually created anything. Duchamp merely displayed an existing urinal, while Koons merely displayed an existing vacuum cleaner. That does not, in itself, constitute a duplication of anything. If it did, there would be two urinals and two vacuum cleaners, the originals and their copies. But, such was not the case. Each artist was only playing provocateur by suggesting that (1) anything can be art and (2) any object, placed in another context, can be art. I could do the same thing and so could you. I can place my computer on a pedestal and call it anything I want to and that doesn't violate the creator's copyright at all. If either Duchamp or Koons claimed they made the urinal or the vacuum cleaner, this is still not a violation of copyright, as nothing has been duplicated. It's simply an untrue claim and though either could be taken to court over it, it's nonsense to believe that American Standard or Hoover would waste the time and money to do so.

Yes, photographs can certainly "lack expression," depending upon the intended use of the medium. It can be used to merely record a scene as it actually is, or it can be used as an art medium, or any mix of the two. So what? This has nothing whatever to do with your sculpture or your copyrights to your sculpture, or the photographer's copyrights. Copyrights are simply intellectual property rights, nothing more. They protect all creative works equally, whether they are utilitarian or fine art. Naturally, if a photographer is photographing your sculpture, he can either shoot it as it appears, merely documenting it in its setting, or he can, like John Hedgecoe did with Henry Moore's sculptures, impart his own creative vision by the use of lighting, lenses and composition. But, again, this has nothing to do with copyrights. Whether a photograph is a straight record of your sculpture or an artistic statement about it, it is still the photographer's property, not yours.

Gary

Last edited by GaryR52 : 08-12-2005 at 02:40 AM.
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Old 08-12-2005, 07:24 AM
JamesDFarrow JamesDFarrow is offline
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Re: Copyright Law

I have a question. What if someone takes a photograph of your (displayed in public) sculpture and then uses that photograph (as a Logo, or Banner, or even a Cover of a book, etc...) to, let's say, enhance the product (sell the book, or for a web site that sells sculpting supplies, or books on sculpture, or maybe something not even related to sculpture). Isn't this using your sculpture, and not the actual photograph, for commercial gain? I am sure I read somewhere that using it this way is concidered as a "value added" (I believe that's the term) use of the "subject in the photograph" and not the actual photograph. So in reality, the medium (photo, drawing, painting, graphic, etc...) is not at issue. The "sculpture" is being used, without permission, for commercial purposes. Yes? No?

James
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Old 08-12-2005, 10:39 AM
Jamo Jamo is offline
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Re: Copyright Law

I don't know the answer. I would think that it is not allowed. But it is again a photograph which is an artistic expression in itself seperate from a sculpture.
A photograph cannot be exerpienced the same way as a sculpture so in essence what Gary is saying it is not an infringement on the sculpture.
I want to go back to this for a second
Glad you mentioned Duchamp and we can also throw in Jeff Koons, while we're at it. Neither was guilty of copyright infringement as neither actually created anything. Duchamp merely displayed an existing urinal, while Koons merely displayed an existing vacuum cleaner. That does not, in itself, constitute a duplication of anything. If it did, there would be two urinals and two vacuum cleaners, the originals and their copies. But, such was not the case. Each artist was only playing provocateur by suggesting that (1) anything can be art and (2) any object, placed in another context, can be art. I could do the same thing and so could you. I can place my computer on a pedestal and call it anything I want to and that doesn't violate the creator's copyright at all. If either Duchamp or Koons claimed they made the urinal or the vacuum cleaner, this is still not a violation of copyright, as nothing has been duplicated. It's simply an untrue claim and though either could be taken to court over it, it's nonsense to believe that American Standard or Hoover would waste the time and money to do so.
By this reasoning it sounds like you are opening the door to this situation. Someone taking a painting done by someone else exhibiting it in a bathroom and being able to call it their own because it is the context in which it is displayed. They may not have copied anything or reproduced the painting but they are claiming that it is their own work. Which I would think is a clear violation of copyright. There is something more to be exploreer here. Another thing I wanted to raise was this. If Marcel Duchamp is creating original art then what exactly is it he holds the copyrights to? There is intellectual property there and there is an original artistic expression. He definetly does not hold the right to reproduce casts of his sculpture because that lies in the company who desinged the urinal. What is that he can protect agains infringement?
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Old 08-12-2005, 10:51 AM
ironman ironman is offline
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Re: Copyright Law

I'd sue the bastards if they used a photo of my sculpture without my permission!
I've had people want to take photos of my work as a way for them to make "their art".
One was a pro photographer, I chased him away. He didn't even ask for permission but just started shooting.
The other was a college student taking a photo class, she asked for permission and promised me copies of the photos. I allowed her to photograph, but I never received the copies.
I'll never allow anyone under those type of circumstances to take photos of my work again.
It leaves a bad taste in my mouth, the thought that people want to use your art to make their art.
Of course, if I don't know about it, it's okay, but I better not see it in print because I'll track you down and make you pay!
Have a nice day,
Jeff
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Old 08-12-2005, 11:41 AM
GaryR52 GaryR52 is offline
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Re: Copyright Law

Quote:
Originally Posted by JamesDFarrow
I have a question. What if someone takes a photograph of your (displayed in public) sculpture and then uses that photograph (as a Logo, or Banner, or even a Cover of a book, etc...) to, let's say, enhance the product (sell the book, or for a web site that sells sculpting supplies, or books on sculpture, or maybe something not even related to sculpture). Isn't this using your sculpture, and not the actual photograph, for commercial gain? I am sure I read somewhere that using it this way is concidered as a "value added" (I believe that's the term) use of the "subject in the photograph" and not the actual photograph. So in reality, the medium (photo, drawing, painting, graphic, etc...) is not at issue. The "sculpture" is being used, without permission, for commercial purposes. Yes? No?

James
Now, that would probably constitute a violation. It's one thing to use a photo of a sculpture as an illustration of the artist's work in a book about the artist, or to use the image as an example of a particular style of art in a book about that style of art or about sculpture, but the use of the same image as part of a logo would be an infringement, as far as I know. Again, I'm not a copyright attorney...but I did stay at a Holiday Inn Express last night.

But, no, it's not "the sculpture" that is being used, quite clearly it is an image of the sculpture. But, regardless, if the image is used without permission and is used for any purposes other than reporting on the artist and his work, I'd call it a violation and sue the photographer.

Gary
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Old 08-12-2005, 11:50 AM
GaryR52 GaryR52 is offline
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Re: Copyright Law

Quote:
Originally Posted by ironman
I'd sue the bastards if they used a photo of my sculpture without my permission!
I've had people want to take photos of my work as a way for them to make "their art".
One was a pro photographer, I chased him away. He didn't even ask for permission but just started shooting.
The other was a college student taking a photo class, she asked for permission and promised me copies of the photos. I allowed her to photograph, but I never received the copies.
I'll never allow anyone under those type of circumstances to take photos of my work again.
It leaves a bad taste in my mouth, the thought that people want to use your art to make their art.
Of course, if I don't know about it, it's okay, but I better not see it in print because I'll track you down and make you pay!
Have a nice day,
Jeff

Sounds like you handled it well, Jeff. The bottom line is, if you don't want your work photographed, that's your decision to make and if you say no and they do it anyway, you have grounds to sue, especially if they misuse the images. I have no problem with that. The problem with Jamo's line of thinking, though, is that he seems to believe he's either entitled to the photographer's income from the (hypothetical) images, or he believes no one ever has a right to photograph his work under any circumstances and this is simply not correct. A public sculpture is in the public domain and can be photographed at will by anyone at any time. The photographer can do as he pleases with the images, short of saying publicly, "this is a photo of my sculpture," and the artist can't do a thing about it. The photographer can realize income from the images because the images are his property and he is not compelled by law to share that income with anyone. In any other case, though, the rule is different. If a photographer comes into your studio and starts snapping away without asking, you can sue. If a photographer asks your permission to shoot photos in your studio and then uses the images for some purpose not agreed to by you, you can sue. But, works in the public domain are entirely unprotected by copyright law.

Gary
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Old 08-12-2005, 12:07 PM
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oddist oddist is offline
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Re: Copyright Law

This might be able to be settled by contacting http://www.photolaw.net/index.html.

They also have a good Q & A section.

The last question "I make collages. Are there any problems that I might encounter?" has an interesting answer...
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Last edited by oddist : 08-12-2005 at 12:13 PM.
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Old 08-12-2005, 12:20 PM
GaryR52 GaryR52 is offline
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Re: Copyright Law

Thanks, Oddist. That question about collage wouldn't apply to Jamo's hypothetical question about a public sculpture for two reasons: (1) the sculpture itself is in the public domain and (2) a photograph of the sculpture, taken by the person doing the collage, belongs, not to the sculptor, but to the person who made the photo; i.e., the person doing the collage. If the photo is another photographer's work, or is culled from a magazine or other copyrighted work, then there may be a violation. The Q&A page is clearly about the use of images and whether or not those images are someone else's work. This has nothing to do with the subject matter of the images, however.

Gary
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Old 08-12-2005, 12:48 PM
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oddist oddist is offline
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Re: Copyright Law

Ok, then what about "this?"

The writer of this article may not like the idea but an artist has rights!

And so, I update this post and add here the copyright law...which I intend to read for my own edification.
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Last edited by oddist : 08-12-2005 at 01:10 PM.
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