RE: Right to Display

From: Cumbow, Robert <RCumbow[_at_]GrahamDunn.com>
Date: Wed, 25 Oct 2000 09:30:22 -0700

The right to display belongs to the copyright owner in the first place, and so does the right to make derivative works, such as the photographer's photos of the artist's original works. The question of whether the photos are "being published" doesn't matter. If they are displayed to the public that arguably violated one of the copyright owner's exclusive rights. Besides, display to the public may well constitute publication. The photographer's work might be fair use if the photographer is reporting something of legitimate news value. But if he is merely recording (and thereby creating a derivative work from) the artist's original work, then displaying that derivative work, he needs the artist's permission.

Robert C. Cumbow
 Graham & Dunn PC
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-----Original Message-----
From: Robert A. Baron [mailto:rabaron[_at_]pipeline.com] Sent: Saturday, October 21, 2000 1:40 PM To: Multiple recipients of list
Subject: Right to Display

Dear cni-copyright list,

An art historian brought up the following situation:

A photographer trespasses on private property and photographs an artist's works -- in this case the works are landscape sculpture, a kind of earthwork. Presumably the artist's works are under copyright in the same way that a golf-course or a garden design is copyrightable. Over the objections of the artist, can the photographer display his photographic images to the public? They are not being published.

I'm assuming that these photographs will be displayed in an exhibit devoted to earthworks, and that there might be a good "fair use" argument here. But, fair use aside, where does the right of display end in situations like this? Can the photographer sell these images?

Would the answer be any different if no trespass was involved?

Robt Baron

---

Robert A. Baron
mailto:rabaron[_at_]pipeline.com
http://www.pipeline.com/~rabaron/
http://www.studiolo.org

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