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Forums > General Industry > PhotogLaw 101 - Derivative Works Search   Reply
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


Third in a series on laws affecting photographers and the models they work with. I'm an MM photographer and a licensed Texas attorney. For liability reasons I won't be giving any legal advice here - just some basic legal principles. Consult an attorney if you have any specific legal situations of your own. Remember that laws vary from state to state and country to country, and federal law may trump state/local laws.  


Can I take a photo of a painting without violating copyright laws? A sculpture? A billboard? What if there's a framed photograph in the background of my favorite image from a recent model shoot?

These are what the law calls derivative works - images that include all or part of the copyrighted work of other artists.

Can I take a photo of a beautiful sculpture without the sculptor's permission? Probably not, one of the rights you get with a copyright is the right to authorize derivative works. But there are some exceptions.

But what if the sculpture is in a public place? This doesn't matter, the sculptor still has the copyright.

What if the sculpture is really old? Then it might be in the "public domain" and you would be able to photograph it. See this link for a famous example (hint - look for the moustache).
http://en.m.wikipedia.org/wiki/File:Mar … _LHOOQ.jpg

But what if my photo only depicts part of the sculpture. It doesn't matter, derivative works include all or part of the original. Here's one of my images, for example.
http://johnperalta.deviantart.com/galle … 0#/d2jg2s0

But what if my image is really different and not just a straight depiction of the sculpture? Then it MIGHT be deemed a brand new "transformative" work and you would have the copyright to the entire image (but not to the sculpture itself, obviously).This image I took, cropped and heavily Photoshopped, would probably pass the test.
http://johnperalta.deviantart.com/galle … 7#/d28fer0

If I have the original artist's permission, can I copyright my derivative work? Yes, if your image is deemed sufficiently original. Obviously you couldn't just take a photo of someone else's printed photograph and call it your own.

One court stated that the originality of derivative photographs is determined by “the rendition of the subject matter—that is, the effect created by the combination of his choices of perspective, angle, lighting, shading, focus, lens, and so on." The courts have been very generous in finding photos to be original works. Here's another of my images that would probably be deemed sufficiently original.
http://johnperalta.deviantart.com/galle … 0#/d5i7jq7

How can you include derivative works in this post without the original artist's permission? Because showing them in this post is for educational purposes and would probably be considered "fair use," another exception to the copyright laws.  : )
Dec 29 12 09:53 am  Link  Quote 
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Photographer
GPS Studio Services
Posts: 34,425
San Francisco, California, US


Here is an interesting link that shows how twisted and tangled this issue can be:

http://www.citmedialaw.org/blog/2010/ph … tz-seattle

Moral of the story, shooting art in a public place can drive you insane.
Dec 29 12 10:07 am  Link  Quote 
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Photographer
Rays Fine Art
Posts: 5,917
New York, New York, US


Couple of brainteasers for you.

1-Shooting the facade of a building--The building itself can't be copyrighted but the design of the building can be.  Argument: I'm not taking a picture of the design, only of the building.  Counter argument: The rendering of the facade is included in the copyrighted design of the building.  Your picture matches that rendering in every significant detail, therefory your picture is a violation of copyright.

2-Shooting a fashion model standing in front of a building.  The wall on one side of the model is painted with graffiti that is the combined effort of the poli-sci class at the Really F---in' Free Street University.  On the other side of the model is a billboard advertising a popular brand of cigarettes.  Argument:  I'm taking a picture of a model in a public place.  Any artifacts surrounding the model and any decorations on those artifacts are merely incidental to the picure, therefore there is no violation.  Counter argument 1:  That's not grafitti, that's a mural representing the struggle of the people against the scum-sucking bourgoisie.  All the artists that participated own the copyright for that portion of the wall in common and you are in violation of their copyright.  Counter argument 2:  Screw copyright, your picture copied the trademark on the cigarette pack, a trademark infringement in its own right.  Furthermore, by associationg it with that emaciated young woman you have created an impression among my market, the youth of America, that smoking leads to anorexia, causing me thereby significant damage.  Pay up!

What should the judge decide and why?

Edit:  Counter-counter argument 1:  The students who painted the graffiti did not obtain permission to do so from the architect who designed the building.  Therefore their painting was an unauthorized derivative and therefore not coprightable.  Therefore, in taking a picture which included the graffiti there is no violation of copyright since their copyright does not exist.
Dec 29 12 12:00 pm  Link  Quote 
Photographer
Eros Fine Art Photo
Posts: 2,557
Torrance, California, US


I have a question as well.

At the Getty Museum in L.A., they have sculptures outside on the patio areas.  People take photos of them, as well as other art work inside the museum.  There are also modern sculptures throughout the city, like in the Downtown area.

Since thousands of people take photos of outdoor sculptures, is it only a derivative work when they post it online, like a snapshot on Facebook?  Or is it only if they try to turn their shot of the sculpture into an artistic photo?
Dec 29 12 12:15 pm  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


Eros Fine Art Photo wrote:
I have a question as well.

At the Getty Museum in L.A., they have sculptures outside on the patio areas.  People take photos of them, as well as other art work inside the museum.  There are also modern sculptures throughout the city, like in the Downtown area.

Since thousands of people take photos of outdoor sculptures, is it only a derivative work when they post it online, like a snapshot on Facebook?  Or is it only if they try to turn their shot of the sculpture into an artistic photo?

One exception to photographing works of art is "fair use" - for example, tourists taking pics for their own use is probably OK.

Dec 29 12 12:39 pm  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


ei Total Productions wrote:
Here is an interesting link that shows how twisted and tangled this issue can be:

http://www.citmedialaw.org/blog/2010/ph … tz-seattle

Moral of the story, shooting art in a public place can drive you insane.

Great link, and you're absolutely right.

Dec 29 12 12:44 pm  Link  Quote 
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Photographer
studio36uk
Posts: 21,516
Tavai, Sigave, Wallis and Futuna


For the kinds of questions that will certainly follow the OP's comments [several of which appear immediately above] it is important to remember that the OP has set out general principles that are applied, however, there are a host of exceptions, variations, exemptions, legal doctrines, and defences that may figure into any given set of facts. Such as:

*copyrightability per se; [utility]
*fair use;
*merger doctrine;
*scènes à faire doctrine;
*incidental inclusion;
*the photographic exception under the Architectural Works Copyright Protection Act
*de minimis infringement [de minimis non curat lex = the law does not concern itself with trifles]
and so forth

Additionally, as the OP comments on US law, but, here we have an international audience, it is also important to remember that other [non-US] national laws may be significantly different either offering more or offering less protection to some copyrighted works in similar circumstances.

Studio36
Dec 29 12 12:51 pm  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


Rays Fine Art wrote:
Couple of brainteasers for you.

1-Shooting the facade of a building--The building itself can't be copyrighted but the design of the building can be.  Argument: I'm not taking a picture of the design, only of the building.  Counter argument: The rendering of the facade is included in the copyrighted design of the building.  Your picture matches that rendering in every significant detail, therefory your picture is a violation of copyright.

2-Shooting a fashion model standing in front of a building.  The wall on one side of the model is painted with graffiti that is the combined effort of the poli-sci class at the Really F---in' Free Street University.  On the other side of the model is a billboard advertising a popular brand of cigarettes.  Argument:  I'm taking a picture of a model in a public place.  Any artifacts surrounding the model and any decorations on those artifacts are merely incidental to the picure, therefore there is no violation.  Counter argument 1:  That's not grafitti, that's a mural representing the struggle of the people against the scum-sucking bourgoisie.  All the artists that participated own the copyright for that portion of the wall in common and you are in violation of their copyright.  Counter argument 2:  Screw copyright, your picture copied the trademark on the cigarette pack, a trademark infringement in its own right.  Furthermore, by associationg it with that emaciated young woman you have created an impression among my market, the youth of America, that smoking leads to anorexia, causing me thereby significant damage.  Pay up!

What should the judge decide and why?

Edit:  Counter-counter argument 1:  The students who painted the graffiti did not obtain permission to do so from the architect who designed the building.  Therefore their painting was an unauthorized derivative and therefore not coprightable.  Therefore, in taking a picture which included the graffiti there is no violation of copyright since their copyright does not exist.

As your hypos demonstrate, these cases can be very complex and much of it is very subjective.

I may be wrong, but I think the laws in some European countries permit taking pics if you are on public property and the work of art is visible to the public. Sounds like a rule worth debating.

Dec 29 12 12:51 pm  Link  Quote 
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Photographer
studio36uk
Posts: 21,516
Tavai, Sigave, Wallis and Futuna


John Peralta wrote:
I may be wrong, but I think the laws in some European countries permit taking pics if you are on public property and the work of art is visible to the public. Sounds like a rule worth debating.

True, at least in the UK, but I don't know if it is universally true throughout Europe. I have never had any reason to enquire further.

But even here you must observe the precise wording - - - [UK=] [includes buildings +] "sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.

Thus a temporary exhibit of any such work, even in a public place, may not be incorporated into the exception.

Further, though not explicitly stated, the exception includes enclosed public areas of, and within, buildings e.g. lobbies, atriums, gardens and courtyards, if those areas are open to the public.

This is the stuff that keeps lawyers in Mercs.

Studio36

Dec 29 12 01:40 pm  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


studio36uk wrote:

True, at least in the UK, but I don't know if it is universally true throughout Europe. I have never had any reason to enquire further.

But even here you must observe the precise wording - - - [UK=] [includes buildings +] "sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.

Thus a temporary exhibit of any such work, even in a public place, may not be incorporated into the exception.

Further, though not explicitly stated, the exception includes enclosed public areas of / within buildings e.g. lobbies, atriums, gardens and courtyards, if those areas are open to the public.

This is the stuff that keeps lawyers in Mercs.

Studio36

Thanks - good information.

Dec 29 12 02:19 pm  Link  Quote 
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Photographer
studio36uk
Posts: 21,516
Tavai, Sigave, Wallis and Futuna


John Peralta wrote:
Thanks - good information.

For your future ref:

Copyright, Designs and Patents Act 1988  [UK]
Part I
Chapter III  Acts Permitted in relation to Copyright Works [includes s:28 > s:76]
Miscellaneous: literary, dramatic, musical and artistic works [s:57  > s:65;]
Section 62 Representation of certain artistic works on public display.

Studio36

Dec 29 12 02:28 pm  Link  Quote 
Photographer
David Parsons
Posts: 972
Quincy, Massachusetts, US


Rays Fine Art wrote:
Couple of brainteasers for you.

1-Shooting the facade of a building--The building itself can't be copyrighted but the design of the building can be.  Argument: I'm not taking a picture of the design, only of the building.  Counter argument: The rendering of the facade is included in the copyrighted design of the building.  Your picture matches that rendering in every significant detail, therefory your picture is a violation of copyright.

Photography of buildings is specifically exempted.

http://www.law.cornell.edu/uscode/text/17/120

The copyright of buildings covers the design and reproduction of the building, not images of the building.

Dec 29 12 03:14 pm  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


David Parsons wrote:

Photography of buildings is specifically exempted.

http://www.law.cornell.edu/uscode/text/17/120

The copyright of buildings covers the design and reproduction of the building, not images of the building.

Thanks David.

Dec 29 12 03:48 pm  Link  Quote 
Photographer
Jon Winkleman Photo
Posts: 86
New York, New York, US


A lot depends on local state laws and also the context of the said copyrighted object within the image. The owner of the Chrysler Building in NYC tried to sue Fish Eddy for creating a dinnerware pattern that featured a silhouette of the Manhattan skyline. The judge ruled that the design of the Chrysler Bldg was indeed subject to copyright protection, it would apply to dinnerware in this case that only featured an image of that single building. However no one can copyright the NYC skyline, so images of the whole skyline that include the Chrysler Bldg but do not make it the singular central point of focus are not violating copyright.

If a model is in a public space a work of art is a part of the background landscape but the image is clearly built around the model, a judge might deem the inclusion of particular elements as part of a background landscape fair usage. If the entire background is only that work of art a judge might rule otherwise. There is a very subjective middle ground between copyright and fair usage depending on the degree  a building or work of art is featured in an image.

The fact that many clients and big stock agencies like Magnum are sticklers for property releases is not necessarily an indication of where the exact line is drawn but it does indicate a desire on the part of the client not to waste a minute of time or a single dollar  arguing with a third parties lawyers even if they know they will win any challenge that would go before a judge.
Dec 29 12 10:05 pm  Link  Quote 
Photographer
devpics
Posts: 832
Melbourne, Victoria, Australia


I wonder if Warhol & Litchenstien thought of this when they invented pop art
Dec 29 12 11:44 pm  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


devpics wrote:
I wonder if Warhol & Litchenstien thought of this when they invented pop art

You'll find this interesting.
http://www.techdirt.com/articles/201008 … 0433.shtml

Dec 30 12 05:42 am  Link  Quote 
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Photographer
studio36uk
Posts: 21,516
Tavai, Sigave, Wallis and Futuna


John Peralta wrote:
You'll find this interesting.
http://www.techdirt.com/articles/201008 … 0433.shtml

I was informally advising on an infringement just two days ago by a major newspaper in the UK. They asked the author / copyright owner for a copy of the image but it had not yet transpired that they had obtained it and a license when the image appeared on the front page. They had actually, without so much as a by-your-leave, lifted a copy of the image from the web and published it! Bad boys!

A couple of swift, to the point, e-mails produced an immediate settlement of UK£2000 [US$~3000]

The definition of a "microsecond" is the time interval between the infringement and the nasty-gram.   LOL

Studio36

Dec 30 12 06:05 am  Link  Quote 
Photographer
descending chain
Posts: 1,113
Fullerton, California, US


John Peralta wrote:
Obviously you couldn't just take a photo of someone else's printed photograph and call it your own.

Would that it were true.  The bold-faced thief Richard Prince has been making tons of money doing exactly that.
http://en.wikipedia.org/wiki/Richard_Prince
The irony of art in a culture of appropriation
Stealing From the Marlboro Man
Richard Prince's Art, Fair Use or Piracy?

Dec 30 12 06:44 am  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


descending chain wrote:

Would that it were true.  The bold-faced thief Richard Prince has been making tons of money doing exactly that.
http://en.wikipedia.org/wiki/Richard_Prince
The irony of art in a culture of appropriation
Stealing From the Marlboro Man
Richard Prince's Art, Fair Use or Piracy?

Ha! Very true. My bad in assuming all photographers are moral, decent and honest. Wonder how many Richard Prince's are out there - too many I fear. Thanks for the very interesting reply dc.

Dec 30 12 09:29 am  Link  Quote 
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