Public art, fair use, and copyright

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10 thoughts on “Public art, fair use, and copyright

  1. Peter F.

    A couple of things: (1) to the extent your photograph is itself creative (rather than, as is your example, lacking any particular artistic merit independent of the sculpture it reproduces), it deserves treatment as an independent work. (2) “The nature of the copyrighted work” is one of the 4 fair use factors. In making a piece of art public, it seems the artist necessarily as ceded a considerable amount of control over the use of the image. To some degree, it’s simply pragmatism — how in god’s name do you seriously expect to control the photography by the public of public art? That you feel compelled to ask permission (did you?) is fine — but must the law compel it? The law is a disaster when it seeks to do impossible things (like wage a “war” on drugs).

  2. B Post author

    Thanks for the link, Jeff, and your thoughts, Peter.

    Jeff, “It’s complicated” is the conclusion I always come up with too. I think in most cases, “better safe than sorry” is a good path to take — and it’s a possibility that this is exactly why the suit was filed. Your analysis seems to make sense to me, where the line really falls is on use and exactly what use means. Seems to be sort of like pornography, I know it when I see it.

    Peter, there’s an obvious issue with your point #1; who defines creative? Do you really think using a sculpture of footsetps as a background for someone’s feet is creative, and as such is an independent work? I don’t see how that can be justified when the original work is so integral to the photo. Sorry, it doesn’t fly with me when you use such subjective terms.

    As for #2, I’m sorry but where you put something having bearing on how people can appropriate it is bullshit. If you display a photo in, say, the window of a public building, that’s very clearly a public display. That doesn’t and shouldn’t erode your right to some control over its reproduction. You’re further missing the point; I’m not looking to control anyone’s photography; even in the case of copyrighted works, people can shoot whatever they want. It’s how those photos are used that’s the issue. I’m concerned about protecting the right of an original creator to determine how portrayal of their creation affects them a) personally (e.g., defamation) and b) professionally (e.g. plagarism).

    I think your final point is the most important. It’s hard to believe that lawyers and judges are really going to understand the concerns of or have in mind the best interests of content creators.

  3. B Post author

    I’m not sure Jörg is going to approve the comment I left on his response, so I’ll just leave it here for the sake of completeness. I’m not sure I have much more to say on this issue but I’m more than happy to hear more thoughts. This was from approximately 4:30p 2.23.2010 (so, predating the comments above).

    Jörg, thanks for taking the time to read my post and respond. I’m of course no IP lawyer, but I’m concerned about IP laws and I think it’s important for anyone who creates, well, anything, to pay attention. This is a tricky situation and I don’t have the ultimate answer — I think there are many possible reasons the photo in question was taken, many possible reasons it was sold as stock, and many possible reasons the suit was filed. I can’t say what all of those reasons were, for sure.

    “Second, that photo clearly is little more than a photo of that sculpture – which is quite different from photographs of people or places that happen to have some public sculpture in them.”

    I don’t know where to find the photo in question, so I’m going off the description here:
    That description is of a photo of “a person’s foot against the backdrop of Mackie’s 1982 artwork Dancers’ Series: Steps.” It’s not very specific, but it doesn’t sound like incidental inclusion; I’m not sure how anyone, especially a photographer, can interpret that to not describe the sculpture to be an integral part of the photo, a key part of the composition.

    That is, if the sculpture wasn’t there, the photo wouldn’t have the same impact, meaning, or even desired effect. There’s no doubt it was included purposefully. If you can find something that convincingly shows otherwise, I’m all ears. If you know where I can see the actual photo, let me know, it’d be illuminating.

    “Basically, what I’m saying is that if you take a photo in the public space that happens to contain some public art – not a photo of some public art like the example in that article – then I really don’t see why the creator of that public art work has to get money if you sell your photo.”

    I totally agree with you here. And I don’t think the sculptor should have to get money, in either case. I do think that in both cases, the sculptor should have to give permission to have their creative work used derivatively by others. You’ll notice I never said anything about anyone (other than me) getting money.

    I just disagree that placing sculpture in a public area is the same as placing in the public domain, which is essentially what you’re saying by claiming it should be covered under fair use. If you could convince me that it the photo is being used as parody, sure, I’d sail on that boat. I’m not sure what kind of parody a photographer is making by selling a photo as stock, though.

    I also don’t think, as I explained above, that this just “happened” to include some public art.

    “After all, if you extended that principle, why not have architects ask for money if you take photos of their buildings?”

    Actually, we do have laws to cover this. I don’t entirely understand them because they’re different than IP laws that govern, say our photos, in that we do have much more leeway to photograph buildings. Maybe you can answer your own question with some research. [edit: Jeff’s link above helpfully covers this, thanks Jeff]

    “Gardeners asking for money if you take photos of the flowers they planted? Where to stop?”

    Like I said, I know it’s a slippery slope. I don’t know if flower arrangements can be protected under trademark or copyright law. Should they? My gut says no. But come on, we’re talking about sculpture, something that is obviously a creative work, that is obviously of some permanence, and that most importantly obviously represents a significant amount of time, effort, and creativity on the part of the artist who deserves to make a determination about to what ends it is used (within reason, which I suppose is the point of this whole debate).

    “Can I ask for money is someone takes a photo that happens to have a computer with my blog on its screen somewhere?”

    Hey, maybe. I wonder if you’re trying to talk about plagarism here, or the trademarks you may or may not have on things like your layout and iconography. But yeah, if you had a logo, and I photographed that logo, and tried to sell it to a stock agency, I would entirely expect you to slap so many lawsuits on my ass it would be red for years.

    “If you want to talk about fellow artists: If you take such a photo and you feel like that the creator of the public art deserves her or his cut”

    Again, I’m not even talking about the sculptor getting paid. I’m talking about them signing off on the commercial use of derivative works. I don’t think that’s too much to ask.

    “But the fact that each and every debate about this issue always comes down to black and white fundamentalist comments about “intellectual property” rights is fundamentally troubling for a society that could really benefit from a little bit more art…”

    Again, I agree completely. I think we massively undervalue art, especially public art. I don’t think I’m being black and white here, but feel free to continue the dialogue and explain that to me. I could say that your use of scare quotes around intellectual property suggests some kind of bias, and I guess I just did. I think it’s fair to be skeptical of current IP law and those who use it as a blunt instrument. I’m just not convinced that’s what’s happening here.

    Anyway, thanks again for reading and adding more thoughts. I know we’re all a little to busy to get pedantic on the web. But it is an interesting case and a hot-button issue.

  4. Peter F.

    #1 — the fact is that under existing fair use doctrine the degree of creativity exhibited by the appropriating work is crucial to whether it constitutes fair use or not. There is plenty of reason, perhaps, to question the capacity of courts to act as aesthetic arbiters, but they do so all the time. Jeff Koons could appropriate part of a commercial photo into a collage because his work was deemed sufficiently original to stand on its own as a creative work and thus constituted fair use. The “sequel” to Catcher in the Rye was deemed to un-original by the trial court to constitute fair use.

    #2 — The nature of the copyrighted work is, like it or not (and call it bullshit or not), part of the fair use calculus, and merely saying it ain’t so doesn’t detract from the point that someone who sells their art as public art has a lower expectation that his or her work is going to be photographed without permission.

    #3 — protecting content creators doesn’t necessarily require what you are suggesting it requires: total control over how that content is used. In fact, that level of control plainly does not exist. The question then becomes — what level of control are you going to impose. First, the level of control you are suggesting is unrealistic in an age in which duplication and worldwide dissemination are available to anyone with a digital camera and an internet connection. Second, are you really suggesting that creative photos of public art aren’t creative content in themselves?

  5. B Post author

    “someone who sells their art as public art has a lower expectation that his or her work is going to be photographed without permission.”

    Maybe I missed a point somewhere, because I’m not strictly talking about someone selling art as public art, I’m more concerned with display. So maybe my thoughts on that aren’t necessarilly pertinent to the example at hand. Your statement earlier about “making a piece of art public” isn’t very specific in that regard.

    “protecting content creators doesn’t necessarily require what you are suggesting it requires: total control over how that content is used”

    I’m really not advocating for that, and I thought I was making this clear, but maybe not. I’m not even talking about the dissemination you’re mentioning. It’s the impact that I’m worried about; let me reiterate: “I’m concerned about protecting the right of an original creator to determine how portrayal of their creation affects them a) personally (e.g., defamation) and b) professionally (e.g. plagarism).” That doesn’t require anywhere near the amount of control you’re interpreting me to be advocating for.

    Anyway, thanks for reading and commenting, you’ve given me a lot of food for thought. I realize that regulating how a creative work is used, especially once it’s “made public” (whatever definition used), is practically impossible (as in the possibility is not practical). But it seems like those who come down against IP laws are trying to completely erase any control the original creator has, which I think is just as backward a step as imposing more restrictions. Then again, maybe that’s an unfair assessment on my part. I do think in this particular case there’s a lot of knee-jerk reaction to the word “lawsuit” from a lot of people who aren’t really considering all the reasons the suit may have been filed.

    I think I’m repeating myself now, so again, thanks.

  6. Jeff Ward

    When I started research the copyright law surrounding public art, I thought my head was going to explode from the complexity. The trouble with blog speculations on the topic is that it usually devolves into a game of “it oughta be..” instead of any real understanding of what the issues really are.

    The European copyright tradition springs from the acceptance of an artist’s “moral rights,” a concept totally absent in US law (with the exception of one statute dealing with art affixed to buildings, as I recall). There isn’t any point in discussing “creative control” in US law, because it is simply not of interest to our courts. As I point out at the end of my article, photographs are not considered to be “derivative” of other artworks and hence even if we did have such control, the complaints would not be admissible.

    The issue in the US is not moral, but a profit driven. Who can profit from the representation/depiction of a publicly visible sculpture/monument (who can sell it?). Simply making images of it is “de miniumus,” or beneath the consideration of our courts.

  7. Peter F.

    You write: I’m concerned about protecting the right of an original creator to determine how portrayal of their creation affects them a) personally (e.g., defamation) and b) professionally (e.g. plagarism).

    U.S. Copyright law doesn’t really protect the creator’s ability to protect how the work is used to protect him or her professionally or personally. If, on the other hand, the work is used in a defamatory way, there are rights to sue for defamation, but the issue in that case is the defamation, not the appropriation. After all, criticism might devastate a creator, but plainly copyright doesn’t give a right to control criticism (or the use of the work in a manner consistent with fair use as part of criticism).

    Jeff Ward is absolutely right in distinguishing the European and U.S. approaches in this regard.

    And I think you’re spot on in focusing on the practical aspects of the question. Law is irrelevant to the extent it can’t be used in any practical way.

    Finally, you’re right too to spot the large variety of things that could be encompassed within the term “public art.” The only thing I can say is that fair use is a case-by-case question. One reason I think that a postage stamp derived from a piece of art sold to the government is fair use (one among many, including the transformative nature of the photo of the monument) is that the use is by the public, is therefore “non-profit,” and the art is not only public, it is displayed by the government in a very, very public place. So yes, a photo displayed on the window of a gallery is less “public” than that monument, but still, the “nature of the work” includes the circumstances of its display.

  8. Seb

    It’s more a question of being respectful than digging into legalese to me here. Err on the side of the moral issue. I would not feel comfortable selling that photo, B, and not because you should murder your darlings, but because (as you pointed out) this is art as well, this is local, our neighborhood, and this is not our primary income source. I would let go on that one; just show it without a sale price, and be strong when people try to buy it.

    I’ll throw another puzzling case at you, closer to (my) home: there are no restrictions on publishing a picture of the Eiffel Tower by day. Photos taken at night when the lights are aglow are subjected to copyright laws, and fees for the right to publish must be paid (source). Fun stuff. Publish?

  9. Peter F.

    eb — more power to your personal morality! Just because something is legal doesn’t mean it’s something you need to do or even something most people should do. As far as I’m concerned, the Supreme Court was right when it ruled that Nazis could hold a peaceful march in Skokie, Illinois, the home of a lot of Holocaust survivors. That their doing so was morally reprehensible isn’t inconsistent with my conviction the law shouldn’t be able to stop it.

    As to the Eiffel Tower at night? I don’t know anything about it, but I’ll look into it. One thing that’s important to know is that, as pointed out above by others, French (and most European) law is quite different than U.S. law in that it protects an artist’s right to “integrity” of the artwork (so called “moral rights”). It arises out of the philosophical conception that the artwork is an extension of the artist’s identity and that, therefore, any messing with the artwork is an assault on the artist himself. There’s a very interesting dialog on this topic in connection with John Cage’s work here:

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