Legal Question: photography of public art

[Paul Mongillo]

About a year ago I was up in Seattle looking for something to photograph. It st arted raining pretty hard (big surprise) and my girlfriend suggested we go over to the Freemont Bridge and photograph the Troll Sculpture under the bridge to ge t out of the rain. We did. However, while breaking down the 4x5 camera a fellow appeared from "nowhere" and read us the riot act. Said that no one could photo graph the troll with any intent to sell the photographs because the artist would not stand for it. At the time I thought maybe he just lived under the bridge h imself. After all this was a piece of art permenantly displayed in a public pla ce.

Well here we are a year later and I have a beautiful BW photo of the troll. My girlfriend is opening an import store and art gallery in August and wants me to display the troll (for sale) along with several of my other photos. Suddenly I keep hearing this fellow say "it would not be legal for you to sell photos of th e troll" over and over in my head. Any comments ? Are there any circumstances where public art can not be photographed and sold ?

[C.W. Dean]

The only place to get your answer is from an attorney specializing in intellectual property rights in the State of Washington. There are many opinions on this but the local law prevails and is usually very specific. Both you and your girlfriend could be vulnerable if you get the wrong advice. Be careful here................

[R. McDonald]

Paul,

This is a very important question, and I second C. W.s advice and would add that this is a constantly changing area of Law so you need to educate yourself and ask for legal assistance just to find the right attorney. It is very important to find someone that is active in this field. And I speak from experience when I say that you need to educated yourself, ignorance does not make a good defense. I hope your question generates good response. I would also add that there are many Cities,Towns, etc. that have a fee that they charge for the rights to use photographs taken in their City and or Towns etc. And I remember reading an article in a photo mag. not to long ago where I think Seattle was discussed as being one of those cities and that they have Photo Cops that read and look at publications just to find photos that they can collect on. Some how I remember that many National parks are, or are looking into, doing this to.

Good Luck....

[Ray Dunn]

Fees for photos in national parks? Gosh, I hope this wrong. Does anyone know which parks are considering this foolishness or have implemented it?

On the one hand it does seem that a photographer somehow is profiting from public land in which he/she had no part of creating. On the other, it just seems absured to charge for something that we all own as citizens. What is the harm? This is a very thought-provoking and confusing subject. I hope someone will share some details about what is happening.

I live 90 miles from Yellowstone, and hope to get up to Glacier NP shortly. I might sell some of my photos at some time in the future, but as a non-professional photographer, I don't feel I should be charged for practicing my hobby.

[C.W. Dean]

With regard to the National Park Service policies, you can find them on line but I presently do not have the link. Basically, the policy goes something like this but be sure to confirm this as I may not have it precisely correct::::

As long as you do not have elaborate equipment, sets, lighting, props, models, and other paraphernalia, there is no fee. When they see photographers with the above, they start to ask questions about potential commercialism and can charge a professional use fee. A lot of this is left to the discretion of the local official(s).

Rules for State parks and private parks and gardens may be similar.

View camera gear tends to raise eyebrows as it's a tad more elaborate than the point-'n-shoots! If questioned, I tell the truth about being a professional and supply my business card and state business license--to date I have not been charged any fee, but I might add that I am a mature gent with silver hair and I am overwhelmingly polite to the officials!!!

[Donald Brewster]

The answer to every legal question is: "It depends." Photographing nature, even in a National Park may be one thing, but under federal copyright law, photographing someone's artwork (the work is most likely copyrighted) is another thing entirely. Think of it this way - - photographing and selling your prints of Half Dome in Yosemite v. photographing (copying) and selling prints of Ansel Adams' photograph of Half Dome in Yosemite. That is essentially the issue here in lurid 3-D. It might cost you a percentage, but I'd suggest contacting the sculptor and seeing what kind of license arrangement you can get -- artist to artist you'd get some respect for at least asking. Anyway, no legal advice intended or implied . . . yada, yada, yada.

[David A. Goldfarb]

I would certainly ask and be friendly about it, and maybe it might turn into a collaboration.

Didn't one of the professional organizations win a case some time ago involving a photographer who photographed the Rock & Roll Hall of Fame in Cleveland for commercial purposes? The H.O.F. claimed exclusive rights to sell images of its structure, but the court upheld the photog's right to photograph a building visible in the public space.

Nonetheless, it would be much more interesting and productive to collaborate with the sculptor, if you really like the work and the sculptor is amenable, than it would be to assert the right just to sell a few postcards.

[David F. Stein]

http://www.photosecrets.com/p14.html

Whenever this issue comes up, I like to post the above by a prominent copyright attorney on "Travel Photography and the Law," with material that applies here. The copyright to that sculpture undoubtedly (w/o legal opinion intended) belongs to the artist; as you will read, even buildings constructed after a certain date hold copyright. Maybe this is why we photograph so many anonymous rocks and trees!

[Bruce M. Herman]

I suggest that you contact the local ASMP chapter. They should be able to recommend a lawyer with experience in this area.

Bruce

[Paul Mongillo]

Whats ASMP ?

[Katharina Wang Schuster]

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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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[Katharina Wang Schuster]

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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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[Bruce Gavin]

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.

[Paul Mongillo]

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.

[Ellis Vener]

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.

[shaman]

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!!!!

[Steve Singleton]

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.

[David_892]

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.

[Frank Ward]

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/

[Paul Mongillo]

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.

[George Nedleman]

This is a little off the main question but bears on some of the other comments re:natl. Parks. I was in DC last year and wanted to take a shot inside the train station. I was off in a corner next to a potted plant totally out of the way but a guard came over and said, "No tripods". I couldn't disuade him. Then later on I was out side the Hirshorn Museum on the Mall and a guard came out with the same request. I had to move back to the public sidewalk to appease him. Still later I wanted to take a shot in a metro station and set up the tripod behind a bench again out of the way and was told to move along. The next day on the lower entry "patio" of the Supreme court bldg another guard came over and wanted to know if I was going to sell the picture. I can undersatand having dozens of tripods in the middle of pedestrians but 1 person ???

[lenser]

Kirk,

In doing a search within LFPF and then in the NPS website, all I find are references in the former and a digest of generalities in the latter, but no specific policy statement. Can you please help with a link to the actual National Park Service rules?

Thanks.

Tim

[Leigh]

In doing a search within LFPF and then in the NPS website, all I find are references in the former and a digest of generalities in the latter, but no specific policy statement.
Not exactly difficult...

Go to the NPS website http://www.nps.gov

Type photography policy into the search box at upper right and click Search.

- Leigh

[Frank Petronio]

Take the photo first, worry later. Since most photos are worthless it's usually a moot point. If there is a truly legit legal stopping point, it will come when you try to sell the image, not when you make the image.

I should qualify that. If it has something to do with homeland security then you could get shot while you make the photos. Pesky details....

[paulr]

Also consider artists like Sherry Levine and Richard Prince, who have made careers out of appropriation. Have they run into serious legal issues?

[Brian Ellis]

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.

You might also want to get on board with the City or whatever organization owns the sculpture. Note that in the Gentile case it wasn't the architect (sculptor in your case) that was suing, it was the organization that owns (I assume) the museum.

[Thom Bennett]

We are currently dealing with something here in New Orleans that relates to a similar copyright issue. The Mardi Gras Indian tribes (http://en.wikipedia.org/wiki/Mardi_Gras_Indians) are attempting to copyright their costumes as sculpture so that anyone who publishes photographs of them must get their permission to publish the photo and/or pay them royalties. They work on their costumes all year in private but parade in public. It's going to be interesting to see how this shakes out. As Frank said, "Since most photos are worthless it's usually a moot point." When the Indians are out on the street there are a thousand photographers around them so I would think in our supply and demand world that there that any given photo would essentially be worthless. But the Indians are going down an interesting road to try to copyright a costume. Keep and eye on this one.