RFF book/copyrighted art in photo - help!

[f/stopblues]

Hey guys! I need some outside opinion of this photo that I'd like to submit for the RFF book. I've attached a quick scan at the bottom.

It is taken at Millenium Park in Chicago, specifically of the big jelly bean called "Cloud Gate". I've read that permission needs to be expressly given by the artist of that work in order to be published. *Here* is a link to an article about it in the Chicagoist.

Here's my question(s):

1) Putting it in the book is obviously publishing it. Since it is not-for-profit does it still fall into the same category? Instead, is it lumped into the same kind of deal as photojournalism? ie, in a newspaper.

2) It's not a photo of the whole thing. In fact, it can be argued that it's not the subject of the photo at all. If it's not deemed identifiable, does the copyright issue apply in the first place?

What do you all think? This copyright stuff is a pain in the rear!

 

[Poptart]

You aren't profiting from the use of the image (as in an advert) and it is in "plain view" so the doctrine is that it's public ownership and fair game. Don't worry so much. Artists are just interested in not being ripped off.

 

[peter_n]

Correct that the book is not-for-profit. However I would contact Adamottavi Schiesl or Micah Hussey as suggested in your link to confirm that you may publish. Better to be sure than sorry.

 

[ch1]

Hey guys! I need some outside opinion of this photo that I'd like to submit for the RFF book. I've attached a quick scan at the bottom.

It is taken at Millenium Park in Chicago, specifically of the big jelly bean called "Cloud Gate". I've read that permission needs to be expressly given by the artist of that work in order to be published. *Here* is a link to an article about it in the Chicagoist.

Here's my question(s):

1) Putting it in the book is obviously publishing it. Since it is not-for-profit does it still fall into the same category? Instead, is it lumped into the same kind of deal as photojournalism? ie, in a newspaper.

2) It's not a photo of the whole thing. In fact, it can be argued that it's not the subject of the photo at all. If it's not deemed identifiable, does the copyright issue apply in the first place?

What do you all think? This copyright stuff is a pain in the rear!

In the future, consider this: some questions are better if left unasked!

 

[paulfitz]

This is a photo of people in front of a large shiny object. I fail to see why there is even a copyright question in the first place. It's in a public place and there's lots of indentifiable people in the picture. Does he need a model release too?

I would think not. I would think that designs of buildings are copyrighted works, so under the logic that it needs to have permission, then any picture of any building would need the permission of the architect.

This is taken way to far. It's not like it's a copy photo of a painting.

 

[paulfitz]

Nice pic by the way!. The guy in the upper right looks like he's keeping it from rolling on everyone!

 

[bmattock]

One can 'think not' all they like. Your opinion is just that, an opinion, and is worth precisely f*$#-all in a court of law. And so is mine.

A famous magazine once had ALL COPIES of their magazine confiscated all over the country and cops going to people's houses to retrieve subscribed copies because of a problem like this one - publication of copyrighted material. It cost millions of dollars and nearly put Ramparts magazine out of business. Wanna bet that the courts can't stop all sales of infringing material and go after the contributors for damages? And you're not a 'non-profit' unless you have IRS status as such. Got it? No? Then you ain't a 'non for profit' or a 'non-profit', you're a going concern that isn't intending to make a profit, which is very different. Fair use is not a doctrine, it is a guideline, which makes this even more of a grey area.

If the RFF book had MY photo in it, and I found myself sued in collaboration as 'et al' author for copyright violation, I'd be extremely ticked at the guy who suggested that he thought such copyright laws were bunk, so go right ahead and do what you please.

ASK A COPYRIGHT ATTORNEY or DO NOT PUBLISH.

Well, that's my 2 cents.

Best Regards,

Bill Mattocks

 

[FrankS]

If the artist who created this piece of art, sold it to the city of ____, and it's sitting in a publically owned park space, how can he/she still claim rights to the copyright? Bogus! I'm submitting photos to the RFF book 2 and I woudl be happy to have this picture included. Bill, with all your talk of photographers' rights in public places, I'msurprised that you're taking such a weak stand on this.

 

[ch1]

Seems to me that the subject of the photograph in question is the crowd - not the item which they are gazing upon and reflected off of.

Another mountain arising from a molehill because of a question that should never have been asked.

 

[ch1]

Oh, and BTW, by posting the picture here - you have already "published" it!

The web, what a wonderously subversive thing!

 

[bmattock]

If the artist who created this piece of art, sold it to the city of ____, and it's sitting in a publically owned park space, how can he/she still claim rights to the copyright?

By not specifying in the contract that they are not transferring that particular right.

Bogus!

We can both say bogus all we like, but we ain't copyright attorneys or judges (or are you, Frank - I'm not), so our 'bogus' means dick.

I'm submitting photos to the RFF book 2 and I woudl be happy to have this picture included.

If this goes in, mine come out, simple as that. I won't be party to the lawsuit, I can't afford it.

Bill, with all your talk of photographers' rights in public places, I'msurprised that you're taking such a weak stand on this.

I am pro RIGHTS. Photographers have rights - so do painter and sculpters and authors and so on. I work within the law and I respect rights as I understand them - I do not simply disregard laws I don't like or find distressing.

I do not know how I feel about the artist's strong copyright ownership stance. In a way, it is only a small extension of MY rights. If I take photos of a client, those are MY photos. I sell copies of them to the client, but I do not transfer ownership of the photos to them. If they then put those photos in a book or make copies of them on their scanner and put them on their website, they have violated MY rights, haven't they? This artist is taking it one step further, and although I can see all kinds of complications that could arise from other artists making similar claims, it appears that at this time, the city of Chicago is honoring her copyright claims.

My stance is not WEAK. You have never heard me say "Disregard copyright! To hell with people's privacy rights! Do anything you want!" No, I say people who are in public do not have a defined right to privacy, so take photos of them as you wish, too bad if they don't like it. On the other hand, without a model release, there are strict rules about what you can DO with those images, and one thing you cannot do with them is use them commercially without a release of copyright. Is the RFF book a commercial venture? You bet it is. It is not 'non-profit' just because there is no defined goal of creating a profit - it takes the IRS to make such a determination.

My stance is in favor of abiding by the laws that protect copyright. If this artist has gone too far, the courts will eventually decide that. I don't want to and cannot afford to be party to that test case.

Best Regards,

Bill Mattocks

 

[f/stopblues]

I think its a fair question to be asked. I'm not wanting this to be an overview of copyright law or any mountain of the sort. I'm just asking in this specific instance, would this photograph be acceptable as a submission?

If the discussion so far is any indication, I'm glad to have it before its in the book.

I do appreciate everyone's opinion from all sides!

 

[ch1]

Getting too contentious - a "wiser" copake_ham is leaving the building on this thread!

But my pics stay in! Oh please!

 

[bmattock]

I think its a fair question to be asked. I'm not wanting this to be an overview of copyright law or any mountain of the sort. I'm just asking in this specific instance, would this photograph be acceptable as a submission?

If the discussion so far is any indication, I'm glad to have it before its in the book.

I do appreciate everyone's opinion from all sides!

I understand your wanting to ask the question, and I'm glad you did. But consider that just asking people's opinions is not that good an idea in a situation like this. I can ask everyone what they think of the latest Voigtlander and I'll get a lot of opinions. Some good, some bad, and so on. I may take advice offered or ignore it, and the only one affected by that is me.

But all of our collected opinions on if this is "OK" or not don't mean squat. We're not lawyers. Presume the worst - we get sued. Are you going to stand in front of a judge and say "But everyone said it was a fine idea and they thought that copyrights like this are bunk anyway!" How well will that fly? Our opinions are worth precisely nothing in a court of law. In questions like this, attorneys can give advice worth considering, and THEY can be wrong at times. Any other opinion is dangerous.

Best Regards,

Bill Mattocks

 

[f/stopblues]

Bill, thank you for your thoughts on this. I posted this precicely to see how it would be received because I respect the community here. I share the opinion to abide by the copyright law, as I would want it to be followed if I were the artist. The question is if they apply in this case or if its close enough to back off from it. I'm personally not familiar enough with copyright law to form a judgement, thus the question I posted.

EDIT: I just read your last post. I understand your point. I'm unfamiliar enough with copyright law that I didn't know if it'd be a landslide one way or the other.

 

[Gabriel M.A.]

To me, your picture seems to be more about the people and the surroundings, and that thing happens to be there. It's not about the thing. Unless, that is, you were expressly meaning to make it the centerpiece of your photograph.

I had a rant about it, but I'll just leave it at that. Well, I will add that the artist is being rather hypocritical by his asking for permission, for his "work" is reproducing everything around it, and the "work" is doing it without the artist asking anybody's permission of anything that needs a copyright prior to become reproduced.

My twopence.

 

[Gabriel M.A.]

If the artist who created this piece of art, sold it to the city of ____, and it's sitting in a publically owned park space, how can he/she still claim rights to the copyright? Bogus! I'm submitting photos to the RFF book 2 and I woudl be happy to have this picture included. Bill, with all your talk of photographers' rights in public places, I'msurprised that you're taking such a weak stand on this.

Hear hear! Amon-Ra, brother!

 

[bmattock]

I'm personally not familiar enough with copyright law to form a judgement, thus the question I posted.

And that's the point - none of us here are, as far as I know. I bought a book on copyright law as it pertains to photographers, that hardly makes me an expert, just conversant with some of the concepts. I would not want to pin my house, my car, and my worldly possessions to this based on a 'belief that it was ok.'

And I'm serious about my photos coming out if this one of yours goes in. It would be one thing if I did not know about this - but having been informed, I have to protect my property and belongings.

And believe me, I don't say that to put you down, insult you, or anything like that. But I have been close enough to civil law cases to see that they go for the throat, and everything you own is up for grabs. IF we got sued (and I have no idea if that would happen or not), lawyers go for the deepest pockets, or a whole lot of not-so-deep ones. I can't bet my house against my vanity at having a couple of photos published, and you can bet all the contributors would be in the docket right next to you.

Best Regards,

Bill Mattocks

 

[bmattock]

Hear hear! Amon-Ra, brother!

If you sell a photo to a city government expressly to be used in their latest newsletter, and then you later find out it has been blown up and is hanging over the museum in the city park, have your rights been violated? You bet your sweet bippy they have.

With photography, writing, music - all the arts - the concept of copyright allows the creator to control, to some extent, what is done with their creation, and allows them to continue to profit by their hard work as time goes by. An author who writes a book would be pretty dismayed to find others reading it online, because one guy bought it and scanned, OCR'd, and posted it. He has been damaged, and has specific remedies under the law - namely, by bringing suit.

This artist has taken it one step further. And that's how the boundaries of such laws get defined - they get taken to a new level until they break, and that's where we find out what the boundaries are.

"Fair Use" is one such boundary. Courts have held in precedent-setting cases that if you make a copy, say, of your music CD for your own enjoyment or you share it with a family member or friend - and do not profit from it - that's Fair Use and permitted without violating copyright. They have also held that sharing it with ten thousand friends online DOES violate the copyright holder and that they can sue and recoup damages.

This artist believes that she (I think it is 'she', yes?) can set forth the rights she is giving up and the rights she is retaining in the contract with the company she sold the artwork to (not the city of Chicago, by the way, but SBC or someone, who in turn donated it to the Millenium Park). This type of thing is normally allowed by OTHER artistic licenses. For example, I might assign One-Time North American rights to the sale of a photograph, or I might assign World-Wide rights for multiple publications over a stated period of time, etc. In this case, she is saying that she has the right to control how and under what conditions her artwork is displayed.

I think she is probably out there a bit too far. But the courts have not ruled on this as far as I know, and the city of Chicago is upholding her copyright claims as far as I know. What she is claiming is only a reinterpretation of what WE say when we sell the 'right to publish' one of our photographs.

Best Regards,

Bill Mattocks

 

[paulfitz]

check out this link, maybe it will shed some light on the subject since it has to do with their submissions.

http://en.wikipedia.org/wiki/Wikipedia_talk:Copyright_FAQ

I have tried a copyright case concerning software code and images on a website, and stood up to corporate lawyers in D.C. about my copyrights related to websites and work for hire vs. original work.

I won. They had to pay someone to redo the site since I refused to give them the copyright for free.

So I have some experience with this matter, but I am not an attorney, thank god. I have never been able to find one that really understood this matter, and the judges that have heard these cases, at least in my experience, knew even less.