In a message dated Tue, 24 Oct 2000 9:19:06 PM Eastern Daylight Time,
"Robert A. Baron" <rabaron[_at_]pipeline.com> writes:
<< 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
>>
Well, first of all there is the illegality of trespassing. So I guess the
artist could get the images seized through this legal route. From the
copyright perspective, I beleive these works are protected (even if they were
on public property, IMHO). The reproduction occurs when the photographer
snaps the shot, not when the images are displayed (and display can be a form
of publication, anyway; but it is irrelevant under current copyright law
which says copyright begins at creation, not at date of publication). This
is regardless of media: whether one creates a new landscape sculpture just
like the original or takes a photograph of it. There is no exception to this
like the one for architecture.
I can not see the basis for fair use in this example. There is a long history of artists granting rights, and collecting fees, if they like, for the reproduction of their works. The company I direct, VAGA, has acted as a rights clearinghouse for thousands of artists for almost 25 years. Some European collectives are over 50 years old. The fourth factor of fair use, the question of market value and competition, would preclude a fair use finding.
If there was no trespass, the only way it could be legit is if the artist (and for arguments sake, I am presuming the artist also owns the property. Otherwise, the property owner may also have an additional claim against the phtographer)granted permission to the photographer to shoot. I think the key question is the nature of the use by the phtographer. If the photographer was shooting for personal use, fair use would probably hold true. But selling the images, even if only one image is made of each shot, would bring it into the commercial realm and likley preclude a fair use decision.
Robert Panzer
VAGA (Visual Artists and Galleries Association)
Received on Wed Oct 25 2000 - 21:22:02 GMT
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