Marketing and Business

Photographing Copyrighted Work – Can you or not?

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photo by OZinOH

 

Once in a while the subject of copyright in photography comes forward.

It is an area where, understandably, there is much misconception, mainly because there is not a “universal” law on copyrights in photography. Actually, different countries have different laws and even inside the same country, like the US, copyright laws change from state to state.

A few day ago I received an email from Martin Dean with a strange story that might have had to do with copyrights. While, for the most cases, doubts come when the rights of the photographer are in question, his was, I believe, a little different:

 

Hi,

I have a question that you might help me with.

Recently I was in NY for a few days. At my hotel lobby there was a very curious statue with some nice propped lighting. I decided to take a shot of it, more for the weirdness of the setting than expecting an exceptional photo to come out.

I shot a frame and, when was about to move away (my camera was on my shoulder strap), I was approached by a security gentleman that, in very brush terms, informed me that I could not take any photos of the statue. Since he explicitly mentioned the statue I asked what about the rest of the lobby. His answer was strange since he proceeded to tell me that he had instructions to prevent photos from that statue only.

Not much more to say except that I was only left alone after I deleted the photo from the card in front of him and showed him that there were no more photos of the statue.

My question is, can the hotel really do that? I’m just curious about it. It’s not a security matter or anything since it seems that I could take any pictures I wanted as long as it didn’t include that statue.

Thanks for any help.

 

Before I attempt any answer, I have to say that I’m glad I’m not a lawyer so I can’t answer with complete certainty. Also, I don’t live in the US, so specifics for this kind of situations over there are a bit foggy for me. Nonetheless, I researched about it and came up with a possible explanation. If this was not the case, at least the information for photographers is valid.

 

Photographing Copyrighted Work

photo by Bah Humbug

 

It is usually accepted that any statues and monuments that are on a public place are OK to photograph. But OK doesn’t mean legal.

Any form of art (which may include architecture) is copyrighted by the author (until the copyright expires, usually up to 50 years after the death of the author). When you photography a statue or monument, or even a painting at a museum, you are, in fact, creating a derivative work of copyrighted material, which is illegal. Of course that the majority of artists want the exposure placing their work on a public place gives them and know, beforehand, that it will most probably be photographed.

Worse case is when the photographer generates some revenue from the derivative work and there are a few cases where these copyright infringement cases went to court. This is why you can’t sell any photos containing, as an example, the Eiffel Tower at night – the lighting is copyrighted art.

Exceptions (and again, it depends from country to country) exist when the work of art was bought or commissioned with public (federal) funding, in which cases it reverts to public domain.

 

Conclusions

I’ve had a few situations where I was asked not to photograph certain buildings. While it could have been due to security reasons (I believe it was the case most of the time) it could also have been an attempt from the architect to protect his copyrights. It baffles me a bit then that you can take a photo of a house, as long as it is from the public road, without breaking any copyright laws.

So Martin, I think this is what has happened to you. If you could take photos of everything with the exception of the statue, it might have been that is was not owned by the hotel and just on exhibit and the artist asked the hotel to prevent any derivative works from it, independently of you were going to make money out of it or not. If the hotel could force you to delete the images without the case being filled in court, I’m tempted to say that it couldn’t, but it’s just my guess.

If any of you readers knows of any similar situation or can add more information, just post it on the comments bellow.

17 Comments

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  2. Niels Henriksen

    November 8, 2007 at 5:11 pm

    Normally you can photograph any object whether building, statue or person at least in most of the ‘free countries’ if on public property.

    Occasionally for national security reasons and these can be quite subjective restrictions may apply” Theses need to be addressed from real policing type person as opposed to security guard.

    What you do with the photograph is the real issues with copyrighted works. Most of the time these images can be printed for news worthy items and when created for works of arts (limited and controlled production numbers) which is different that a commercial distribution of images like post cards or calendars.

    The Statue in the above question was on private property and therefore the owner can restrict all actions, including photography on their property. The owner of the hotel most likely can not force you to delete the photo, but if you don’t delete, they can ask to leave the premises and if you return they charge you with trespassing. So there are always consequences to your actions.

    It is amazing how many people take serendipitously photos with a camera phone, but when you are obvious with a larger camera this draws attention.

    While in many cases you may be legally right do you want to go through the hassle of defending your rights.

    Niels Henriksen

  3. Jonathan Bailey

    November 8, 2007 at 7:41 pm

    Another element to consider in this case since the statue was inside the lobby is that the photo was taken on private property and property holders do have the right to restrict such photos. They usually have to post signs indicating as such, but they do have the right.

    That is unlikely in this case since the statute was mentioned specifically, but it is worth noting nonetheless.

    An interesting article with a lot of valuable questions.

  4. Aaron

    November 8, 2007 at 9:08 pm

    When you say that creating derivative works of copyrighted works is illegal, you are completely wrong. At least, in the United States you are.

    Not only can you take pictures of that statue, but the hotel has absolutely no right to force you to delete the images. Even if you are criminally trespassing, you can take photographs and sell them for money as stock or prints or whatever you want.

    This applies only for “publicly accessible areas,” which doesn’t mean “publicly owned,” only publicly ACCESSIBLE. In other words, photographing inside of a shopping mall, for instance, is a publicly accessible area. Even if the mall says you can’t photograph there and kicks you out, you can use those photographs to make money.

    I wrote a somewhat extensive article about this and linked to some helpful documents written by people more knowledgeable than myself on US law:

    http://www.singleservingphoto.com/2007/07/10/photographers-are-terrorists/

    I’ve personally been asked to stop photographing BUILDINGS with the reason given that “the building is copyrighted.” So what? If photographing copyrighted objects were actually illegal, very little photography would take place in this country.

    I hope that’s helpful!

  5. A Marques

    November 8, 2007 at 10:44 pm

    Hi Niels,

    As you mentioned, normally you can. No one will usually stop you. The problems, as you also note, is if you intend to make money on that work. Then not only you are violating a copyright but profiting from it.

    You also touch on a point that is very interesting, and that is when a derivative work will fall under fair use such as newsworthy or editorial content. Nonetheless, care needs to be taken if you use copyrighted work under fair use but then make profit from it.

    And it’s true. Sometimes having the bigger camera draws a lot more attention to you.

    Thanks for your comment.

  6. A Marques

    November 8, 2007 at 10:47 pm

    Hi Jonathan,

    For further information on what you mentioned, I’ll refer you to the link posted by Aaron (just bellow yours). It’s actually quite informative on the whole private/public places and the rights you have to take photos in there.

    Thanks for dropping by and taking the time to comment.

  7. A Marques

    November 8, 2007 at 11:02 pm

    Hi Aaron,

    Thanks for your insights.
    I’ve read the document you linked to (very informative) but I couldn’t find in it any mention to photographing copyrighted work. It goes a great way explaining your rights to take photos in public or privately owned but accessible places and is a good resource but doesn’t answer the main question on my post.
    It seems that Martin was told that he could take any photo he wanted except from the statue. If you think about it, the statue is a copyrighted work and a photo is a derivative work.
    When you say “When you say that creating derivative works of copyrighted works is illegal, you are completely wrong. At least, in the United States you are.” I’ll have to point you to the US Copyrights Office, specifically the section about derivative works (http://www.copyright.gov/circs/circ14.html), in which is stated “Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author”.

    I agree with you when you mention that if an area is accessible you can take and sell photos of it. But not of any copyrighted work on it. As an example, I’d like you to consider the following scenario:
    You manage to get a few photo works on a gallery for exhibit. I go there and take a perfectly framed photo of one of your works and manage to sell it as stock. Next week you see a huge billboard advertising for some company with your photo. Do you think I trespassed on your copyrights? Because according to you, I didn’t.

    Anyway, I really enjoyed your comment and I hope that it managed to open up things a bit for discussion.

    Thanks for your opinion.

  8. Aaron

    November 8, 2007 at 11:42 pm

    You make a good point, A Marques, and it’s true that using photography to duplicate a work is most certainly illegal. I think that in your example of photographing a painting square-on, you would have difficulty proving to a court that it was in fact derivative and not simply a reproduction.

    The section you quote from US copyright law essentially states, in a nutshell, the purpose of copyright, which is to permit a copyright owner to profit from their creation by preventing others from duplicating and selling it as their own.

    What the law does not state (which is what makes copyright law such a bramble patch) is what qualifies as “derivative” and what is simply a “copy.”

    I am reminded of a court case that Dan Heller wrote about in one of his treatises on the subject of copyright and trademarks (which is really what these statues and buildings are claiming to be, trademarks). You can read the actual ruling here (it’s long): http://www.danheller.com/images/FAQ/Business/rock-n-roll-case.txt

    And you can read Dan’s thoughts about it here: http://www.danheller.com/model-release-copyrights.html (under section 2.4 “Scope of Trademark Protections,” though the entire page is relevant).

    Basically, a photographer was sued for photographing the Cleveland Rock and Roll Hall of Fame and selling posters made from the images. The photographer lost the civil suit, but the federal court of appeals reversed the ruling for various reasons (finding in favor of the photographer and permitting him to continue selling the posters).

    What I’m getting at with all this is that it’s seldom a cut-and-dry situation, and even when a copyright holder has a legally valid claim, the photographer’s use may still be permissible. Or it may not be!

    One other thing I wanted to touch on regarding the original question is that the security guard had absolutely no right (in the US) to demand the erasure of the image. Whether the use of that image would have been infringement or not, “private parties have no right to confiscate your film … threatening to use force or call a law enforcement agency can constitute criminal offenses such as theft and coercion.” (From attorney Bert P. Krages II’s wonderful “The Photographer’s Right” guide: http://www.krages.com/phoright.htm)

    Of course photographers should be respectful. I have been asked to stop photographing by many authority figures in many situations and I typically do. There is no sense causing trouble over a snapshot of a funny-looking statue. Nevertheless, when we allow some of our rights to be violated, we get closer to having no rights at all.

    I’m adding your blog to my feed reader!

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  10. Jonathan Bailey

    November 10, 2007 at 2:57 am

    Though I’m not saying the guard was within his right, I don’t think he was, I want to make it clear that preparing derivative works without the permission of the copyright holder is in fact illegal.

    I’ll point you to the copyright office Web site:

    http://www.copyright.gov/circs/circ1.html#wci

    It is one of the set of exclusive rights that a copyright holder gets.

  11. A Marques

    November 12, 2007 at 4:22 pm

    Hi Aaron,

    That was quite a nice read you pointed me to. Copyright issues are really becoming a mess.

    About the guard asking to erase the photos, I agree completely. There is no way that he could have done that. But, would anyone risk a lengthy case because of such a small thing? Maybe we should… :)

    Oh, and thanks for adding my feed to your reader. Keep stopping by.

  12. Aaron

    November 12, 2007 at 5:35 pm

    @Jonathan Bailey

    You are absolutely right. I should have read the actual statutes more thoroughly, but what I was actually thinking of was the “amount and substantiality” measure with regard to “fair use.”

    It is possible to create legal derivatives from copyrighted works provided that the derivatives are sufficiently different from the originals. Think about Andy Warhol’s Mona Lisa screen prints and Campbell’s Soup cans.

    In this case, a simple photograph of the statue would certainly not qualify as a fair use derivative work and would therefore be illegal to use for anything other than editorial purposes. Photographs used for editorial purposes are essentially never illegal (think journalism, etc.).

    This has been a very interesting discussion.

  13. Lau @ Digital Photography Tutorials

    November 13, 2007 at 12:05 am

    Good information here. You make a point but definitely I will not worry now for shooting statues. Everyone should enjoy art and copyright will be abolish in the years that will come..

  14. A Marques

    November 13, 2007 at 1:26 am

    Hi again Aaron,

    Thanks for keeping track. It has definitely been a very interesting discussion.

    Just a small heads-up. I had to fish all the comments you left from the Askimet spam net. So your site is somehow marked as spam on their database. You might want to try and pull it out of there.

    Thanks again.

  15. A Marques

    November 13, 2007 at 1:31 am

    Hi Lau,

    I’m also not essentially worried about copyrights about photographing statues. Mainly because if I do, it’s for personal archive and not for commercial use.
    Nonetheless, I don’t think copyrights will be abolished in the future. Maybe tweaked, but it servers a purpose. Otherwise, many people will see their work stolen all over the place, and will make many people give up the art. Lots of photographers make their living from it.

    Thanks for dropping by.

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