Re: Re: Filming of sculptures

I disagree strongly with John about this. Photographs and videos of sculptures can most certainly be derivative works. Take the Picasso scupture in downtown Chicago. I could take 30 pictures of it from various angles, distances, under various lighting conditions and so on and then make a collage from them. I will have taken more than the idea -- I will have used the lines, the very expression of the thing itself to create my work -- and my work will have added something beyond changing medium. Hence a derivative work. And, probably, infringing.

If I only take one photo, and try to capture the essence of that sculpture in that photo, all I have done is changed medium -- 3D to 2D -- and the differences are solely due to the change of medium -- and thus I would probably have made a copy of the work, i.e., reproduced it.

Now, if I'm a tourist taking a snapshop -- almost certainly fair use. If I'm a professor of law taking a picture to show with the case about that sculpture -- probably fair use. If I'm an art teacher showing the pictures to show Picasso's peerless sense of line, probably again fair use. But if I capture the image and print it and sell it, I am reproducing and distributing those reproductions.

All that said, sculptures on a campus are made to be looked at and are expected to be part of the campus life in some sense and one would think filming them in part to show the campus and the sensibility of the college would be fair use. It certainly would not be impinging on the market for those works or depriving anyone of some exploitable right of reproduction and display and distribution, it would seem to me.

But it is not a crystal clear situation by any means.

Steve

On Aug 28, 2006, at 3:55 PM, J. Noble wrote:

> My own view is that two-dimensional photos are never
> "reproductions," or substantially similar copies of protected
> works. They are only arguably derivatives, but not much more so
> than an evocative written description. In essence, the photo
> appropriates the idea, but not the expression. It "portrays" the
> expression -- it doesn't copy the expression. But that's if I was
> King. In reality, this will almost always come down to whether you
> are making money on the photos. Applying the fair use analysis, you
> have a creative work, entitled to the fullest protection of
> copyright, which argues against fair use. On the other hand,
> however, the purpose of the "copying" is wholly transformative; it
> copies only one composition of one aspect out of an infinite
> variety of compositions and aspects; and it has no affect on the
> market for the protected work. If the photos are offered for sale,
> it gets to be a close case because it has an arguable effect on the
> market for derivatives licensed by the sculptor, but even then
> there's an important difference between a book about sculptures in
> public spaces, and a framed photo of a single sculpture that is not
> available for anybody to see for free.
>
> John Noble
>
> At 6:25 PM -0400 8/24/06, Bob Panzer wrote:
>> This is a difficult question with no right or wrong answer. IMO,
>> if the sculptures just happen to be in the background of a given
>> scene, then it is likely to be fair use. If the camera comes in
>> close to any of the sculptures implying that the point of the
>> shot is for the viewer to be able to note the sculpture
>> specifically, or perhaps if any people are shot standing next to
>> or on the sculptures for specific effect, then I believe it would
>> be prudent to clear rights with the copyright owners.
>>
>> Sincerely,
>>
>> Robert Panzer
>> Executive Director
>>
>> VAGA (Visual Artists and Galleries Association, Inc.)
>> 350 Fifth Avenue
>> Suite 2820
>> New York, NY 10118
>> Tel: 212 736 6666
>> Fax: 212 736 6767
>> rpanzer[_at_]vagarights.com
>> From: CNI-COPYRIGHT -- Copyright & Intellectual Property
>> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Kathy Tadlock
>> Sent: Wednesday, August 23, 2006 2:46 PM
>> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
>> Subject: [CNI-(C)] Filming of sculptures
>>
>> On the WWU campus, there is an extensive collection of outdoor
>> sculptures. A film crew is coming to campus to film a short piece
>> (four minutes) about some WWU athletes. They will be taking a
>> walking tour of campus. The producer is interested in including
>> some of the sculptures in the film.
>>
>> Does permission need to be requested to include the sculptures in
>> the filming? For some sculptures, there are existing limited
>> copyright agreements for web use and print reproductions.
>>
>> Kathy Tadlock
>> Support Services, Publishing Services
>> Wilson Library 564
>> Western Washington University
>> Bellingham, WA 98225-9127
>
>

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008	                         http://iipsj.com/SDJ/


"A word is not a crystal, transparent and unchanged, it is the skin  
of a living thought and may vary greatly in color and content  
according to the circumstances and the time in which it is used."

Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425  
(1918)