Photograph of a statue.
- December 28, 2008 @ 7:37pmyudamah says:A friend of mine owns a statue which is obviously NOT in the public domain. She wants to take a photograph of the statue and post it to a forum so that other people can see it. A few people on the forum say that it would be a copyright infringement to post a photograph of a statue without the artist's permission. I say it isn't necessary to get the artist's permission, because photographs of copyrighted works for the purpose of review or critique doesn't require the artist's permission. Who's right, and is there any case law supporting this? Thanks.
- December 30, 2008 @ 9:23amMKardick says:I am unable to cite any case law to support or refute your claim, nor should my opinion be taken as legal advice, however, I can tell you that with Copyright Law everything is subject to interpretation. Your statement "photographs of copyrighted works for the purpose of review or critique doesn't require the artist's permission" is essentially accurate but your friend, according to your post, wants others to be able to "see it." This is not the same as a "review" and I would suspect she could need permission. Without further details on the purpose of the photogragh's posting, it is difficult to make a better determination.
Any thoughts from someone else?
- December 30, 2008 @ 6:15pmyudamah says:My friend inherited a large bronze statue. She doesn't know the background of the statue, except the name of the statue and the author's signature, which are etched into the base. After doing a bit of research, she discovered that the statue is a scene from a book written in 1977. She found an online forum whose members discuss that book and others written by that particular author. So she joined the forum and made a post expressing interest in the book that the statue was based on, and asking their help in learning some background on the statue. Several people asked that she post a photograph of the statue, but one moderator said no. That moderator was of the opinion that without the artist's permission, it would be a copyright infringement. I say that in this case, the artist's permission isn't needed. I hope this explained it a bit better. Thanks.
- January 3, 2009 @ 5:23amksmith says:There are several questions to which it would be helpful to know the answers here. Is the statue displayed in a public place? Is it incorporated into a building or a "useful article?" I presume from your post that the answers to these questions are both "no," which means that the exceptions in section 113 of the copyright act do not apply to permit the photograph.
The date of the statue is also relevant, at least if it is on public display. It is obviously after 1977, but is it before March 1 1989? There is a case -- "Letter Edged in Black Press v. the Public Building Commission of Chicago" -- that held that the publicly displayed Picasso sculpture in Daley Plaza was in the public domain because of failure to affix copyright notice prior to "publication." This is an odd conclusion, I admit, but possible if the work was displayed before 1989.
Another outlying case, from 1941, held that an absolute transfer of title to a unique work of art also transferred the copyright to the transferee. This case ("Pushman v. NY Geographic Society") could possibly be helpful to your friend, but it has been repudiated by the courts and overruled legislatively.
One reason for citing these cases is to show that the ordinary assumption is that the artist retains the right to authorize derivative works (such as a photograph) unless there is an exception, or a court finds some oddity that either transfers the rights by operation of law or divests the artist of her rights. Since none of these seem to apply to your friend's situation, I think you should conclude that the photo must either be distributed with permission or else qualify as a fair use. Your original question contained the bare bones of a fair use argument (regarding the first factor, at least, but a much fuller analysis would, in my opinion, be necessary. The second and third factors will almost certainly count against fair use. Your strongest point would probably be that there is no harm to any potential market for the original, but that would rely on knowing that the artist never intends to sell photograph's of her work.
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