I walked around Eastern Market in DC yesterday with my wife and some friends. It was a particularly overcast time of the day, with sparse photographic opportunities, but I was determined to snap a few shots before heading home for the day. I encountered this painter below in a deep conversation with a young art student. (on a side note, I really need to get some monitor calibration going here)
Click to see a larger version
While I was getting ready to snap a picture of his paint-encrusted boom box, he noticed my camera and paused his conversation.
“Hey, hey, my man with the camera…you can’t shoot this”
He proceeded to indicate that I could not take pictures of his artwork on display, to which I quickly responded that I was actually taking a picture of his boom box. He conceded that I would be able to shoot the boom box and continued with his conversation. This interaction annoyed me to a degree because I often find that artists don’t really have a very strong understanding of their legal rights, and often that fundamental lack of knowledge leads them to believe they can assert rights they don’t always possess.
In this case, the artist did have a point that I intended to respect, and that is the right of reproduction.
An artist maintains the copyright and exclusive right to reproduce the work they create. The tricky aspect of this legal right for a photographer, is that the act of taking a picture of a painting in this case can constitute a reproduction regardless of whether or not you upload it to the internet or create prints. By even taking a picture, you have recorded the work and reproduced it essentially without authorization which does constitute a violation of copyright law.
In this sense, an artist can assert the right to prevent you from displaying or distributing their work without authorization. Whether or not an artist can prevent you from actually taking a snapshot is a bit more of a grey area, but if your intended use is personal and private, there would immense legal hurdles involved in an artist asserting a violation caused by your personal and private use. To further complicate the legality of reproducing a work of art, the concept of Fair Use allows for the use of copyrighted works in limited scope.
I believe it is reasonable for an artist to have a conversation with a photographer who is taking pictures of their work in order to inform them of their legal rights, perhaps even reasonable to request that they not take pictures that could infringe upon the artists rights. That being said, I do believe it is reasonable to expect that discussion to be framed as a dialogue between artists instead of a heckling shout of “no no no, you can’t do that”. As a photographer is a potential peer in the artistic community, this type of discussion can present a valuable moment to teach another artist of their own creative rights through the assertion of your own. If the conversation is framed in a constructive way, you can introduce a solid understanding and respect for artistic rights instead of coming off like yet another mall-cop sticking your hand in front of someone’s lens.
It has to be said that the painter in this situation did act with respect and did not request anything other then that I not photograph his art which was never my intention anyway. The picture of him speaking above is an example of my rights as an photographer to capture any person in a public space who does not have a reasonable expectation of privacy. He could request that I not take a picture of him (which he didn’t), but he would have no legal standing in order to enforce that request.
The picture of the boombox below is again an example of my rights as a photographer, as the object is not an artistic work, but is instead an item of utility found in a public space which I am well within my rights to capture and distribute.
Click to see a larger version
Add commercial gain to the equation and the water becomes much more murky with the issues of model releases and right to publicity, but the shorthand solution would be to consult a good lawyer and obtain all the permissions you’d think you might need if you intend to sell an image either to the public or to a company or publication. Truth be told, if you’re at the point where you’re about to profit from selling your photography, you’re at the point where you need to start seeking legal council anyway.
For further reading on your rights as a photographer (in the United States), please visit these links:
- Bert P. Krages II – Photographers Rights Pocketguide
- Standford University Libraries post on Fair Use
- Dan Heller’s exhaustive post on the Photos of Trademarked and Copyrighted works
- World Intellectual Property Organizations’ document on Legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People
- http://www.copyright.gov/
For some generally good (though overly self-righteous) writing on the rights of photographers, visit Thomas Hawk’s Digital Connection. Take him with a pound of salt.
Interesting post, I think when an artist places his works in the public street they enter the public domain by his choosing and I would have no quarms about them appearing in one of my street shots. Public place=Public domain.
Nick,
It’s important to note that Public Domain is a legal status indicating that no current copyright exists on a given work of art. A work of art cannot be legally considered to be in the Public Domain unless it was created by the US government, was created before copyright and patent law was established, or if the copyright term on a given work has expired.
An artist’s copyright is indestructible under the Berne convention and thus an artistic work cannot be legally conveyed to the public domain by direct intention or neglect.
Under your supposition, there’s the potential that you might be legally entitled to reproduce an artistic work within your photograph under the Fair Use provision of copyright law, but as with many areas of the US legal system, there isn’t a simple litmus test to determine legality.
For example, the shot on your page under “street” of the two women viewing the painting is technically a reproduction of an artistic work that could be seen to be in violation of copyright law (depending on the country of capture and the age of the painting in question). But, there is also the good possibility that the way in which you depict the painting can be interpreted to be a “fair use” under the US copyright law.
Either way, the tricky aspect of copyright law and fair use is that it must be litigated in a court of law to reach a firm conclusion on a case-by-case basis. There is no universally permissible way to reproduce another’s artistic work if there is a valid copyright in existence…we have only guidelines to suggest what might be acceptable.
Either way, Love the shots on your site, especially all your “business” samples.
Trademark owner for the above mentioned stereo could potentially sue you as well as the artist himself…