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My husband is a photographer. The following is my personal opinion only and not intended to be a legal advice. All the cases and law review article cited below can be found in any law library. For more discussion on the subject of photography and copyright protection, see Jennifer T. Olsson, "Rights in Fine Art Photography: Through a Lens Darkly", 70 Tex. L. Rev. 1489 (1992).



Question presented: Can public art be photographed and sold?



Short answer: public art may be photographed unless it constitute main motif of picture and is used for commercial purposes.



Case in point: Rock & Roll Hall of Fame and Museum, Inc. v. Gentile Prods., 934 F. Supp. 868 (N.D. Ohio 1996).



Cleveland photographer Chuck Gentile photographed a downtown museum against a Lake Erie sunset, made it into a poster, entitled it "THE ROCK AND ROLL HALL OF FAME AND MUSEUM IN CLEVELAND," and offered it for sale throughout the metropolitan Cleveland area. The Rock & Roll Hall of Fame and Museum, however, was less than thrilled. It sued to enjoin all publication and distribution of Gentile's poster on the grounds that it violated the Museum's trademark rights in both the building and the name, "ROCK AND ROLL HALL OF FAME."



Gentile asserted that he did not need the Museum's permission to sell the posters because the building is in a public place. Sounds familiar? Well, unfortunately for Gentile, the United Stated District Court for the Northern District of Ohio disagreed and enjoined Gentile from selling and distributing his poster. The court found a "likelihood of confusion" between Gentile's poster and the Museum's trademark that would cause irreparable damage to the Museum's licensing program and revenues.



Analysis: Generally, photography of buildings permanently situated out-of-doors in public place not infringement unless it constitutes main motif of picture and is used for commercial purposes. Gentile lost his case because the Museum's building is subject to trademark protection. This case was decided in the State of Ohio. Though I haven't found a similar case decided in the State of Washington, it is my opinion that a court is likely to apply the same standard to photography of a sculpture that is permanently displayed at a public place. In other words, if the Troll Sculpture is subject to trademark protection, it would be infringement to sell photographs of the Troll Sculpture.



Even if the Troll Sculpture is not subject to trademark protection, the sculptor would have the right to publicly display his work under the copyright law. However, if the Troll Sculpture does not constitute main motif of the overall composition of the photograph, it is likely, upon finding a "fair use" exception, the court will find the sculptor's right not being infringed. In this case, the photographs may be sold commercially because when the location of the camera and choice of time and season result in an artistic composition, copyright extends to the overall composition that results from the photographer's exercise of judgment, skill, and creativity.



Conclusion: IMHO, commercial sale of the photographs of the Troll Sculptor may infringe on that sculptor's right. What is more, you have per se notice of the artist's intention, "it would not be legal for you to sell photos of the troll." It would be prudent, therefore, to contact the sculptor and obtain a license to sell the photographs of the Troll Sculpture.



"A century or so ago, Paul Cezanne reached into a fruit basket and said, 'With this apple, I will astonish Paris.' So he did. He painted a picture of that apple so magnificent that it takes the breath away. If he tried that today, he'd probably have the apple growers suing him for royalties. Sillier things have happened." - - Dan Lynch, Artist a Loser at the Track, Times Union (Alb.), July 28, 1996, at B1.



Personal opinion only.

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