RFF book/copyrighted art in photo - help!

[bmattock]

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.

All the more reason not to violate what someone explicitly states is their copyright, because you may be flipping a coin if you disagree with them - you might win in court, you might lose.

And in any case - since you've been to court, I'd bet you'd agree with me - win or lose, going to court sucks, is expensive, time consuming, and in the end you often wish it hadn't happened. Win or lose, I can't afford to be dragged into court.

Some people test 'wet paint' signs by touching. I may do that too. But if the 'wet paint' sign has the power to take away my house if guess wrong, I'm not going near the damned thing.

Best Regards,

Bill Mattocks

 

[Aardvark Aallen]

Just a thought. If you know who the artist is why don't you write and ask for their release? They might just give it. Some background on the project would help clarify that big $$ are not at stake. Or offer half of your 'royalties/earnings' if there are any.

My guess is you will probably get a sign off. If you don't then you know. Send in a back up alternate shot for the RFF project just in case.

 

[hugivza]

To my mind, the easiest way to resolve this matter is to contact the artist ,as has already been suggested. Non legal opinions about the law are of little value, the only opinion of value is that of the ultimate trier of fact. If the artist feels that his rights have been impugned he may decide to sue, whether he has a strong case or not, or whether art truly imitates art. Whereas some may consider a suit under these circumstances to be unlikely, contacting the artist and requesting his permission avoids an unecessary and avoidable risk, particularly as that would seem to be relatively easy to do. As Clint would say "Do you feel lucky today?" Or perhaps more aptly "publish and be damned?"

 

[ClaremontPhoto]

Is the architect *really* going to chase you up for putting this photo in a small-publication book?

I don't think so.

 

[Goodyear]

Just thinking out loud here. Barely expressing opinion, and definitely not offering advice:

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.

I would be very surprised if you had anything to worry about, Bill. You, I, the others are all contributors to the book, not authors or publishers. I guess legally that would be the guys who put it together, and/or upload to Lulu. I'm sure Lulu must have some kind of clause in their terms that removes liability from them. Whether that would satisfy a judge is another matter, though - putting something in terms doesn't necessarliy making it binding or effective.

As far as contributors go, I've never heard of a contributor to a publication being liable for something else in that publication that was nothing to do with their contribution. I don't see how they could be.

But who knows how it could all work out?

The only advice I would offer would be to echo Bill's: either ask someone who is qualified to advise, and probably the artist, or submit something else.

Which pains me, because I like the shot a lot.

But even if it's not me, I'd hate for anybody to be open to trouble.

 

[RJBender]

To my mind, the easiest way to resolve this matter is to contact the artist ,as has already been suggested. Non legal opinions about the law are of little value, the only opinion of value is that of the ultimate trier of fact. If the artist feels that his rights have been impugned he may decide to sue, whether he has a strong case or not, or whether art truly imitates art. Whereas some may consider a suit under these circumstances to be unlikely, contacting the artist and requesting his permission avoids an unecessary and avoidable risk, particularly as that would seem to be relatively easy to do. As Clint would say "Do you feel lucky today?" Or perhaps more aptly "publish and be damned?"

That sounds like a good idea, John. The Chicagoist website has a New York phone number for the contact. Infospace tells me that it's the phone number for the Barbara Gladstone Gallery 515 West 24th Street, New York, NY 10011

R.J.

 

[FrankS]

Contacting the artist is probably the best course to take.

In the photo, only a small section of the sculpture is showing and all that it amounts to is a section of convex mirror. A skyline is reflected in the mirror which may help to identify the location of the convex mirror and thus the actual sculpture the convex section of mirror depicted is part of. But I don't think enough of the sculpture is showing to identify it precisely.

 

[bmattock]

I would be very surprised if you had anything to worry about, Bill. You, I, the others are all contributors to the book, not authors or publishers.

Lulu = self-publishing. Contributor = publishers.

I guess legally that would be the guys who put it together, and/or upload to Lulu. I'm sure Lulu must have some kind of clause in their terms that removes liability from them.

No clause, anywhere at anytime, removes liability from anything for any purpose. Disclaimers are intended to dissuade people from suing. Anyone can sue anyone for anything. Possible exceptions are government entities, which are commonly exempt from civil tort and must consent to be sued. Disclaimers and terms in contracts are all open to question via lawsuit.

Whether that would satisfy a judge is another matter, though - putting something in terms doesn't necessarliy making it binding or effective.

Correct - you said it better than I did.

As far as contributors go, I've never heard of a contributor to a publication being liable for something else in that publication that was nothing to do with their contribution. I don't see how they could be.

Traditional publishers have liability insurance and commonly indemnify authors and editors who are not employees against such things. This is no such venture, there is no one to indemnify me. And I'm not asking anyone to - but I have to make my decisions based on that as well.

Anyone can sue anyone for anything. When a person feels their copyright has been violated and chooses to sue, the first thing their lawyer is going to do is file on everybody whose name appears on it, wall-to-wall, and let the judge sort out who gets excused and who doesn't. I can't even afford the first round of the 'not my fault' carpet dance.

But who knows how it could all work out?

Exactly. I have a high level of risk acceptance - but to me, that means risking my eBoy payment against not getting the camera or lens or widget that I bought. I can't and won't bet my house, cars, and other possessions against someone's claimed copyright and someone else's assurance that I won't be sued.

The only advice I would offer would be to echo Bill's: either ask someone who is qualified to advise, and probably the artist, or submit something else.

Right. There are lawyers who are expert in this area who work for a fee and offer advise that means a lot more than anything any of us could say. Perhaps he or she would say I'm full of it - fair enough. But until I hear from an expert, I have to go wtih my own judgment.

Which pains me, because I like the shot a lot.

I quite agree. In fact, I mean my statement in no way as a threat - if I withdraw, there will be no hard feelings on part towards anyone, and entirely my own decision. Just me following my own paranoia where it leads me. I may have missed many opportunities, but it has kept me safe thus far.

But even if it's not me, I'd hate for anybody to be open to trouble.

Agreed.

Best Regards,

Bill Mattocks

 

[RJBender]

Just thinking out loud here. Barely expressing opinion, and definitely not offering advice:
I would be very surprised if you had anything to worry about, Bill. You, I, the others are all contributors to the book, not authors or publishers. I guess legally that would be the guys who put it together, and/or upload to Lulu. I'm sure Lulu must have some kind of clause in their terms that removes liability from them. Whether that would satisfy a judge is another matter, though - putting something in terms doesn't necessarliy making it binding or effective.

As far as contributors go, I've never heard of a contributor to a publication being liable for something else in that publication that was nothing to do with their contribution. I don't see how they could be.
But who knows how it could all work out?

The only advice I would offer would be to echo Bill's: either ask someone who is qualified to advise, and probably the artist, or submit something else.

Which pains me, because I like the shot a lot.

But even if it's not me, I'd hate for anybody to be open to trouble.

Read LULU's Member Agreement :

By uploading Content to the Site you represent and warrant that the Content:

Is owned by you, or to the extent owned by someone else, that you have obtained that party's permission to provide the Content to Lulu for use, copying and distribution under the license in this Agreement;
Does not violate any copyright, trademark, trade secret or other intellectual property right;
Does not invade any individual's right of privacy or publicity;

You understand that Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such Content originated. This means that you, the User, and not Lulu, are entirely responsible for all Content that you upload, post or otherwise transmit via the Site.

Because Lulu provides a creator-controlled publishing tool, the company cannot accept responsibility for the quality of the content purchased (including misspelled words, grammatical errors, etc.), its formatting, design or overall appearance. The author approves the visual presentation and content of each item.

In no event shall Lulu Enterprises, Inc. or any of its officers, employees, directors, affiliates, agents or third-party licensors and content providers be liable to you or anyone else for any special, consequential, indirect, cover, punitive, incidental or similar damages (including, without limitation, lost profits, lost sales, or lost business) directly or indirectly related to or arising out of the Site, Content on the Site, or any transaction entered hereunder, whether in contract, tort or otherwise, even if Lulu or one of its officers, employees, affiliates or agents has been advised of the possibility of such damages.

At least Lulu doesn't have an indemnification clause!

 

[Paul T.]

I deal in copyright quite frequently for a large publishing company; I am the one who liaises with a specialist lawyer, and by now I know a lot of the criteria off by heart. I do have doubts, as this is essentially a depiction of the sculpture. There is no hard and fast law on this because it all falls under Fair Use, but some of the criteria include how big a portion of the work is included, and how large a part of the resulting artwork it takes up. IN this case, in my view, you've photographed a substantial part of the work, and the work takes up a substantial portion of the resulting photo. If the artist is liltigious you will be tied up in lawsuits for months.

If you had in in-house lawyer, and there was a public interest in the story, or if it were illustrating a news piece, you would almost certainly be fine, but lawyers often effectively decree tougher criteria for book use, because by definition there's no news angle to the coverage.

If it were taking up, eg, a small part of the photo, I would suggest printing without asking permission. In this case, I think your only recourse IS to ask the artist.

Sorry. I'm sure you don't want to hear this!

 

[Gabriel M.A.]

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.

OK, you have a very good and valid point. That's a good example of what I would call a "loophole". I think that's what lawyers are for. Everything has to be defined. Including what is the meaning for the word is. 😛

 

[RJBender]

Who has the account with LULU, Rover (Ralph)?

Once you tell the artist that the image will be used in a book, how do you convince the artist to grant permission? 😕 Are the royalties being donated to charity?

Check out www.gladstonegallery.com

E-mail accounts appear to be first initial and last name. I assume the people you will need to contact are:

aschiesl@gladstonegallery.com
or
mhussey@gladstonegallery.com
or
info@gladstonegallery.com

R.J.

 

[T_om]

There is so much incorrect information in this thread that there is no one good place to start.

It ranges from "just ignore copyright" to "the sky is falling if this picture goes in the book" and both are wrong.

A a professional involved with publishing and also restoration of copyrighted works, I have been involved with these issues for a long time.

People need to step back and take a deep breath or two.

First, is the art copyrighted? Of course it is. Read this: http://www.copyright.gov/title17/92appvi.html

Second, is it legal to take pictures exploiting the artists work for profit? Of course not.

However, ->IN THE USA<- (I have NO IDEA about countries that are not signatories of the 1989 Berne Convention for the Protection of Literary and Artistic Works) you CAN take and publish pictures with copyrighted works of art in them provided the photograph meets certain 'tests', the primary one being is the copyrighted object itself the subject of the photograph and is the possibly infringing work profiting from the display and sale of the image of that art.

In the sample photo above, neither of these apply.

It is especially noteworthy that all copyright law awards turn on the infringer reaping monetary rewards at the expense of the copyright holder. Someone downloading music on the Internet, for just one example, steals income from the copyright holder and therefore reaps a monetary reward from the theft (they didn't pay for the music). The lawyer I retained to establish policies for my restoration business basically said "No monetary damages, no foul" was the general rule.

Here is some light reading for those so inclined: http://www.copyright.gov/title17/

Please note it is US LAW ONLY and other countries laws will certainly vary.

Also, for your further edification, just stop and logically think of the consequences if the law were interpreted any other way.

~ You would never be able to publish a photograph that had a billboard in it because you would be violating the original photographers copyright.
~ You would never be able to publish a photograph with an automobile in it because those designs are copyrighted.
~ You would never be able to publish a photograph a bus on a city street with advertisements on the side as you would violate both the copyright holder of the bus and the copyright holder of the ad.

etc., etc., ad infinitum

The photo above is of people. A peripheral part is the inclusion of the work of art. It is not the subject, not is the photograph intended to profit from the inclusion of the art.

No foul.

Tom

 

[RJBender]

More info on Anish Kapoor HERE.

R.J.

 

[bmattock]

It is especially noteworthy that all copyright law awards...

And that's it, in a nutshell. Awards. Perhaps the artist would not prevail.

Is the artist enjoined from suing?

I can't withstand the costs of defending myself in court over something like this, or even getting to the part where I ask to be excused because I had nothing to do with it. Win or lose makes no difference to me, I can't afford the risk if a potentially infringing shot is included and the risk is higher than, say, a billboard on the side of a bus.

The artist has drawn controversy in this situation precisely because she intends to make much of her copyright - advertisers on busses generally don't that I'm aware of.

Ask any legal department for any major company - it is not about right and wrong, it is about risk mitigation and management. "Oh we'd win the suit no matter how much it costs us, because we have right on our side," is not a statement you'll hear in the hallways of a Fortune 500 company. The question is how likely are we to get sued, and how much does it cost if we do? Win or lose are insignificant points.

Your statement about the book not being for profit is a subject of debate. You may certainly be right that a civil trial would establish that this book is indeed not intended for profit. I'd be bankrupt long before we got to that point, so it hardly matters to me. What matters is the risk level with an artist who has made it clear she intends to vigorously defend her stated copyright.

To me, this is less about the results of a lawsuit - I don't frankly care which side would win a theoretical catfight. It is about the potential risk that there would be a lawsuit at all.

As individuals, most of us are not fabulously wealthy. You get served with papers inviting you to a copyright infringement lawsuit, and you just spent your 401(k) and you just sold your house - today. Right now. Without even getting to the part about how the law is on your side. Just to hire the lawyer to answer the thing. Are you ready for that?

Best Regards,

Bill Mattocks

 

[RJBender]

~ You would never be able to publish a photograph that had a billboard in it because you would be violating the original photographers copyright.
~ You would never be able to publish a photograph with an automobile in it because those designs are copyrighted.
~ You would never be able to publish a photograph a bus on a city street with advertisements on the side as you would violate both the copyright holder of the bus and the copyright holder of the ad.

Tom, watch some RAP videos on BET or MTV. The music video producers blur the logos on the hats and T shirts.


R.J.

 

[RJBender]

....The artist has drawn controversy in this situation precisely because she intends to make much of her copyright - advertisers on busses generally don't that I'm aware of.

Anish Kapoor is a dude. I never heard of him until I read DMR's post on Cloudgate a few months ago.

I'm now inspired to sculpt something out of Illinois clay and call it Clodgate. 😀

R.J.

 

[Paul T.]

There is a difference herre from the other examples you cite, Tom; they are all mass-produced articles. However, it is possible you can be sued for copyright infringement in some cases, even if the article is mass-produced.

There is a reason photography is banned in most art galleries - it is because such photography infringes copyright, as this will quite conceivably do. You will note that, eg, in Ian Richardson's Picasso books there are no Picasso works reproduced - again, because it would infringe copyright. And, in fact, he would have a better case than many, because he would qualify under 'criticism and review' - if you critique a work, you may often excerpt or quote it.


You are totally correct in saying that if the a/w is only incidentally portrayed, then that makes a difference. My opinion is that the a/w here can be considered the subject. And while you may be able to claim that there's no commercial gain (so the book is not going to be for sale anywhere?), this wouldn't necessarily prevent a 'cease and desist' order that might mean you have to pulp it.

If it's relevant, my lawyer is an IP specialist, not a general practitioner. And I consulted her at some length about photos that included copyright works, in a mass market book... in the end we made sure we included an element of criticism and review against every image that we went ahead and used.

WHat you also have to bear in mind is that, if an artist consults their lawyer and asks if there's an infringement of copyright, the lawyer is likely to say yes. Because that way they will get some work.

all of TOm's argument are valid. THis IS a question of opinion, and an experienced intellectual copyright lawyer might tell you this is a risk you cna get away with. But there's a risk nonethless. Particularly if the artist is known to be litigious. I don't know the distributiuon plans for the book, and if it's essentially a private distribution, you are more likely to be OK.

 

[Socke]

With all that talkin about risks I think I better stop photographing anything but trees in the djungle. The picture of the lamp I posted today seems to be very risky as the design of the lamp is copyrighted by Ikea and they might sue me. The car which is in a picture I took today is copyrighted by Bentley, the building in the background copyrighted to the architect.

Sometimes I think it isn't even aloud to remember the music I just listened to or a film I've seen.

This Intelectual Property stuff is too complicated for me :-(

 

[jlw]

Interestingly, if you wanted to publish a photo of this sculpture in a book entitled "Public Eyesores" and include a statement that you think it's hideously ugly, copyright law couldn't touch you because "fair comment and criticism" are specifically protected.

If a lawyer tried to bluff you anyway, you could just say the magic words "Cherry Sisters" and he'd have to go away, unless he wanted to risk getting lectured by a judge for bringing a frivolous lawsuit.