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Thread: Legal Question: photography of public art

  1. #11

    Legal Question: photography of public art

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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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  2. #12

    Legal Question: photography of public art

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    Regarding the Gentile case: The Sixth Circuit court determined in 1999 that the Museum did not establish a strong likelihood of success on the merits and, therefore, vacated the preliminary injunction, 71 F. Supp. 2d 755 (1999). The Sixth Circuit reached this conclusion because it determined that on the record before them, plaintiffs had not used their building design as a trademark. Gentile's poster was thus a fair, non-infringing use where the Museum failed to demonstrate actual confusion and secondary meaning. The court analyzed the claim purely under federal trademark law. The question of First Amendment protection is still in debate.



    Personal opinion only.

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  3. #13

    Join Date
    Aug 1999
    Posts
    108

    Legal Question: photography of public art

    What nobody has touched on yet, is the tremendous cost of defending yourself against a lawsuit. Sometimes the only way to win, is to not play.

  4. #14

    Legal Question: photography of public art

    Thank you all for your responses and very helful links to other pages. I'm convinced after reading your responses and checking the suggested links that I definately need to get ahold of the Freemont Troll artist before doing anything else with this negative an print. He obviously needs to be on board regarding any income that might be generated from my photograph. I have found his name and phone number and plan on contacting him this evening.

  5. #15

    Join Date
    Mar 1998
    Posts
    1,972

    Legal Question: photography of public art

    Was a copyright notice prominantly placed or near the statue? Selling occasional " art" prints of an image usually is okay. making a POSTER AND DISTRIBUTING THOUSANDS OR SELLING THE IMAGE FOR USE IN ADVERTISING USUALLY REQUI RES A LICENSE. Your best bet is to contact the artist or his or her estate and ask. Whether it is located in publi c or private space is not the issue. "The Cadillac Ranch" near Amarillo is locat ed within viewing distance of an interstate highway, daily probably dozens if not h undreds of people stop and make photographs of it. Some of those people are professionals. There is a copyright notice leading up to the installation. I tra cked down the artists who created the installation (A collective known as"The An t Farm") and asked and was glad I did as they are vigilant about protecting their copyright and getting royalties when the image is used in a commercial fashion. They retain an attorney to handle this for them. My images went to my stock agen cy with a clear notice that any commercial (i.e advertising as opposed to editorial or educational) usage would have to be okayed and licensed by The Ant Farm.

    So about a year later I get a copy of a brochure from a paper company, designed by an ad agency with a photograp similar to mine, but no credi t to the Ant Farm. Hmmm, I think. Two days later I get a call from my stock agent saying "hey we are really glad you followed up on that copyright lic ensing of the Cadillac Ranch images. Why? I ask. "Because this ad agency wanted to use your image for a paper company's marketing brochure but they didn' t want to hassle with getting license and paying a fee to the artists so they an image from another agency". Yeah? I respond."And now the client, the aad agen cy, the stock agency and the photographer are all being sued by The Ant Farm.

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

  6. #16

    Join Date
    Jul 1999
    Posts
    84

    Legal Question: photography of public art

    You reveived very good advice. Here is my very personal "common sense" opinion: Everything that is on common display should be "free game" for photographers, be it landscapes (lone pine tree!!), be it buildings, be it sculptures somebody placed in public. I find it ridiculous not to be allowed to paint/photograph/write about a piece of art that is on PUBLIC display. If the artist doesn't like it, he shouldn't place it in the open but in a museum instead. Things inside of museums, galleries, shops (like the Ansel Adams print mentioned above) etc. of course should NOT be photographed.

    I know, that this "common sense view" is not what the law prescribes - and I find it very sad!!!!

  7. #17

    Legal Question: photography of public art

    Why not keep it simple and contact the sculptor? Explain your desire to share his work and yours with a larger audience and ask if he'd have any objection to your selling prints in your girlfiend's gallery. Offer to send him a courtesy print and promise that, beyond selling prints as agreed, you'll never publish the photo elsewhere without coming back to gain permission for another use. Offer to send him a letter to that effect. If he agrees to let you sell prints, you could then ask for a permission letter that you can show to gallery owners or buyers. In short, approach the artist with respect and consideration and create a positive experience. Achieving your goal without getting any more legalistic than you have to is a victory for everyone involved.

  8. #18

    Join Date
    Dec 1999
    Posts
    146

    Legal Question: photography of public art

    I agree with the sentement of the other posters, contact the artist and try to arrange something, say perhaps crediting them on either the back (e.g location, name of sculpture, date it was erected/or when photo taken, name of artist), or in part of the title of the print. By all means offer a royalty fee, if they have any other works offer to shoot them. Remember to offer say a 16x20 selenium or otherwise toned print.

  9. #19

    Legal Question: photography of public art

    As far as Gentile and the Rock and Roll Hall of Fame, I had understood the opposite of what the previous poster said.

    I read that Gentile had won the case because 1) he was on public property while photographing the building and therefor did not infringe on the building physically, and 2) the building is such a dominating part of Cleveland's skyline, shoreline and overall image that the museum could not claim exclusive rights to its being photographed.

    Am I referring to an earlier ruling? If what the poster said is true, it will progress out of district court to supreme court before it is decided. FYI, the ASMP, American Society of Media Photographers, is handling his legal costs.

    Frank

    http://www.culturalvisions.com/

  10. #20

    Legal Question: photography of public art

    Another legal question posted today made me revisit this post. I felt I should give the outcome. I did contact the Troll artist. It turned out to be four people. I talked to two of them. They dicussed my request to display Troll prints for sale in gallery like conditions. They agreed in writing to let me sell the print as long as I gave them credit on the back of the matted prints. The letter allows me to sell the print for two years at which time the issue would need to be revisited. They requested a one time exchange of money. I can't remember, but I think it was $10.00. They did not wish to receive a commision.

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