Digital art with photo I took of a public sculpture?

← Return to forum

  • Hi
    I took a photo in a city of a scuplture that was being moved from the foundry to its new somewhere location; I want to cut out the image and incorporate it in a new work of my own. Okay to do this and sell the result?
  • Sculptures are protected by copyright like other art pieces, so you should treat it like you would a painting or photograph. This means that you'll probably need to do a fair use evaluation to determine whether or not your use is fair.
    Edit: And as ksmith points out below, there are other things to take into consideration.
  • Thanks; since I read elsewhere that a painting of Mona Lisa with a mustache on it is fair use, then would not this be similar? I'm taking my shot of the sculpture, which is on a trailer tied down and pasting the whole thing in another shot of the ocean. Not sure how to do the evaluation you suggest?
  • Rondi, from my limited understanding painting a mustache on the Mona Lisa would not qualify as fair use because the Mona Lisa is in the public domain, meaning there is no copyright to worry about. The reason the Mona Lisa is in the public domain is because it was created before 1923; So you can do whatever you want to the original Mona Lisa except claim copyright on it. You could however claim copyright on a derivative work of the painting by, for example, painting a mustache on it.

    I'm interested in what the more erudite members say on the photo of the sculpture. But my opinion is that if the sculpture was created after 1938 it could very well be copyrighted and you would have to contact the legal copyright owner to get permission to use the photograph. But there could be an exception here and that might be if the photograph was only of the sculpture. If you used the entire photograph of the sculpture being moved from the foundry, it is possible the same laws would not apply.

    But I'm still trying to sort these laws out for myself, so wait for the other members to answer before you take anything as right or wrong. Goodluck.
  • Thanks for your thoughts. Guess until I know the answer I better put NFS on my brilliant piece!
  • Rondi,
    You may have been discouraged a little too thoroughly by this thread; there are arguments in favor of what you want to do, if the conditions are right.

    For one thing, if the sculpture has been on public display since before March 1989, when the requirement that a published work carry a copyright notice was definatively dropped, it may well be in the public domain. In 1970 a federal court determined that the Picasso sculpture in Chicago's Daley Plaza had been dedicated to the public by virtue of its display in a public place -- the court said this was a "general publication" without notice (see Letter Edged in Black Press v. Public Building Commission of Chicago, N.D. Ill, 1970). If the sculpture is new, however, and your post could be read to imply that it is, public display without notice will not devest it of copyright since no notice is now required.

    Also, if you decide to consider whether your use is a fair use, think hard about whether it could be considered a transformative use, since these uses are heavily favored by courts in fair use cases right now. A transformative use not only is one that creates a new work, you must remember, but it is one that does so by comment or parody of the existing work. In other words. some characteristic of the original must be essential to your new creation. The author of "The Wind Done Gone" was specifically parodying "Gone With the Wind," which rendered her new use clearly transformative. If your new work is making a similar statement about the original, not merely using it for aesthetic reasons, your fair use analyss is strengthened.

    Finally, if neither of these possibilities seem open to you, you can always ask permission from the sculptor or the city. It costs nothing to ask, and you might as well know if there would be a charge, and if so, how much, before you abandon your plan.
  • Thanks, ksmith. I concur completely.
  • Thanks, ksmith. I do think the argument that my work is transformative applies. And I will try to contact the sculptor, just as a courtesy.
  • Dear Friends
    I found out today that the sculpture was created in 1995 by a Brenda Maltz and it was recently donated by its original purchaser to a hospital for their healing garden. The foundry did not know how to contact the artist and I can't find her on the Internet. Do I ask the hospital for the right to use it? Or does the sculptor have the copyright? What if I can't find her?
  • Rondi,
    I'm glad you decided to persevere with this. I did some searching for Brenda as well. It appears she is a resident of Mason County, Washington. My understanding is that the artist holds the copyright unless she transfers it to another party. If you can find out who donated it, they may be able to tell you how to contact her. I'll do a bit more searching myself and if I find any more I'll get back to you.
    I do not know what you do if you cannot find her but I'm sure one of my colleagues here on the network will fill us in.

  • Rondi,

    Of the alternatives I suggested to you, your research has eliminated the idea that the sculpture might be in the public domain, and you are having trouble contacting the sculptor. Fair use is the third option (if you can not contact the artist even for a courtesy request for permission), and I believe you have a strong argument.

    In fact, on October 25 the Second Circuit Court of Appeals affirmed a lower court's finding of fair use in a situation very similar to yours. An artist named Jeff Koons had used a photograph that originally appeared in some advertising to create several collages. The 2nd Circuit held that the use was clearly transformative and had no impact on the market for the original work. With both of these two fair use factors -- usually considered the most important of the four -- on the new artist's side, the court said the new work was fair use.

    I have not read the whole opinion, just several reports about it on copyright blogs, but it seems to contain some helpful language about when a new work is transformative. In the past the courts have struggled with when and in what situations a new artist really needed to appropriate the prior work. In Koons v. Blanch the Court applied a wide brush to this question -- the new work can be justified as a transformative use as long as there is a "creative rationale" for borrowing the original image and not merely an attempt to get attention for the new work or avoid the labor of creating something fresh.

    Of course, fair use is a very "fact specific" finding, and no one case can say for certain whether your use would be fair or not. Koons v. Blanch is one case in a long series of fair use discussions, and it is binding precedent only for the lower courts in the 2nd Circuit. But the similarity between your desired use and that of Mr. Koons is striking. It is hard to see what impact your use could have on the market for the sculpture. If your use can also be justified as a transformative one, based on your artistic reason for using the photograph of the sculpture, you seem to have an analogous argument. So while I can not give you legal advice, I can reiterate my suggestion that fair use is an important consideration for you.
  • Thanks, Ksmith. Given the fact that I'm not a known artist by any means and I'm just showing and selling in a small town venue, I'm going to go ahead and follow my muse.

    Much appreciation for your time.

Posting to the forum is only available to users who are logged in.

← Return to forum