Luminous Landscape Forum
Equipment & Techniques => Pro Business Discussion => Topic started by: Slobodan Blagojevic on April 30, 2014, 09:37:44 pm
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I've been participating in another forum in a thread about photographing art pieces at art fairs and copyright infringement by doing so. The author, a painter, made several claims that I find dubious from a legal perspective (though I am not a lawyer).
His main claim is that "photographing art without permission is theft," even when standing on public ground, outside of the artist's tent.
From what I know, the very act of photographing something is not theft or illegal, but the subsequent use of the photograph for commercial purposes is.
He wants exhibitors to put the following sign (emphasis mine):
ATTEMPTING TO
PHOTOGRAPH ARTWORK
WITHOUT ATTENDANT’S
PERMISSION :
1) SHALL CONSTITUTE PRIMA
FACIA EVIDENCE OF
CONSPIRACY TO ENGAGE IN
COPYRIGHT PIRACY AND MAY
BE SUBJECT TO LEGAL OR
CIVIL PROSECUTION;
2) SHALL CONSTITUTE
PERMISSION TO SURRENDER
THE IMAGE/S BY REVIEW AND
DELETION, BY EXPOSING
FILM, OR BY SURRENDERING
THE CAMERA;
3) SHALL CONSTITUTE
PERMISSION TO PROVIDE
IDENTIFICATION TO
ATTENDANT.
DOES NOT APPLY TO EVENT
STAFF, SECURITY, OR TO
CREDENTIALED NEWS MEDIA
ON ASSIGNMENT.
Sign courtesy of ARTandJUNK.com art show artists’ anti-piracy services.
Distribute freely. ARTandJUNK.com disclaims liability from use of the sign.
Now, I am all for copyright protection, but this seems to me a step too far, in terms of its legality. As far as I know, only police has the rights claimed above, and only if they had a probable cause that a crime is committed. Even police can not request the deletion or confiscate the equipment without a court order.
My impression is that acting in the above fashion seems like a lawsuit waiting to happen. One participant actually said:
I also had a confrontation with a photographer in XXX. She was trying to photograph my photography when I asked her to stop. She went and got the police and wanted to charge ME with assault because I got close. It took hours to get straightened out...
Any lawyer out there or someone more versed in the subject?
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I'm not a lawyer and I don't shoot at outdoor art fairs, but if I saw this sign anywhere, I'd just stay away. It screams "I've got problems and I can make them yours if you come too close!" I'll bet (maybe ... depending on the country and culture) that for every person like this one, there's another that would love to be photographed.
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I think the proper thing to do is ask the artist permission before trying to photograph their art. If they say no, move on. Sometimes there does not need to be a written law for one to still exists. Common sense covers a lot of ground between laws.
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Just hopefully to contribute perspective. In the heyday of the American crafts movement (70s-90s), I was part of it and I did lots of wholesale trade shows and some high end fairs. Camera's coming through were prohibited precisely because of concept stealing and even direct copying - from your friendly neighbor and from overseas. Tensions ran really high around this issue because it was bad, bad and more than a few folks saw their ideas and even their products show up places making someone else money.
So maybe this person's energy has derived from something similar - and this is his attempt to control it. Not commenting on rather there is a better way or not, though maybe there is. Not sure what your issue is with it. But perhaps what I shared may be of some use to you.
Cheers
Gary
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Just to be clear, this is not about me or common sense. This is about legality of the implied threat in the sign. This is about confrontations between artists and security guards, perhaps emboldened by the sign's seemingly legal language, and photographers. Confrontations that did happen and will happen. We are already too often presumed terrorists when taking pictures of buildings, or perverts for taking pictures of children.
The question is: does taking a picture, standing on public grounds, outside the artist's tent, of the tent's contents, constitute a theft or "conspiracy to engage in copyright piracy" or not.
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... Not sure what your issue is with it...
I stated my issue in the OP: "I am all for copyright protection, but this seems to me a step too far, in terms of its legality."
I understand the concern you described, and the painter in question has, about copyright theft. I also personally respect the "no photography" sign when I see it. I might even support a ban on cameras in art fairs. But such requests are usually made concerning "professionally looking" cameras, with "big" lenses. In this day and age, when everyone carries a high-resolution camera phone, would banning "professionally looking" cameras really make sense? Or would it just ostracize so-called "serious amateurs"?
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Thanks. I indeed have heard stories about having a camera these days in some situations makes the camera person a target. And some places have decided - country's and corporations I think - that you cannot take pics of their "property" without permission or paying a fee. Wasn't Australia trying that a while ago for instance. This kinda stuff does suck.
Gary
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The question is: does taking a picture, standing on public grounds, outside the artist's tent, of the tent's contents, constitute a theft or "conspiracy to engage in copyright piracy" or not.
I'm not a lawyer and the following comments do not constitute legal advice.
The 8th PACA "Copyright Commandment" states -- "Creating a painting or a sculpture from a photograph is an exclusive right of the copyright owner and you should obtain permission first (http://www.pacaoffice.org/commandments-2.shtml)."
Similarly I would expect that creating a photograph of a painting is the exclusive right of the copyright owner, and we should obtain permission first.
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... Similarly...
Well, that is exactly the gist of the debate: is it "similarly" or not.
As I said in the OP: "...the very act of photographing something is not theft or illegal, but the subsequent use of the photograph for commercial purposes is." That would be my reading of the PACA "commandment" as well. Therefore, it does not follow that just taking a photograph of a painting is not allowed, at least not in my view, otherwise PACA might have said so directly. I might be wrong, of course, hence this post and request for clarification. Thanks for posting the link.
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Therefore, it does not follow that just taking a photograph of a painting is not allowed, at least not in my view, otherwise PACA might have said so directly.
Ummm doesn't the PACA statement say very directly "Creating a painting or a sculpture from a photograph is an exclusive right of the copyright owner…"
iow Copying infringes copyright ;-)
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"Creating...from a photograph...
In my view, there are two steps here: 1. taking a photograph and 2. doing something with it. The first is legal, the second is not.
A parallel: taking a picture of anyone in public is legal, using it for commercial purposes is not.
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I'm not a lawyer and the following comments do not constitute legal advice.
…taking a picture of anyone in public is legal
afaik People are not protected by copyright law.
afaik Paintings are copyright works, and I expect taking a photograph of a painting is an exclusive right of the copyright owner.
I think we've gone as far was we can, and you'll only be satisfied (or dissatisfied) when you hear it from a copyright lawyer ;-)
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...I think we've gone as far was we can, and you'll only be satisfied (or dissatisfied) when you hear it from a copyright lawyer ;-)
We have. I am not interested in a particular outcome, I am interested in an outcome. The "pain" of being proven wrong will pale in comparison to the satisfaction of knowing what's right. As much as I hate being wrong, I hate even more being the last to realize it :)
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I am not a lawyer, so this information is free and possible wrong. If I were a lawyer, the information would just as likely be wrong but it would cost you $300/hour.
As far as I know, if you are on public property you can legally photograph anything and anyone you want. As Slobodan has suggested, it's what you can and cannot do with the photos that is controlled by copyright law. As an analogy, suppose I buy a copyrighted book and make 500 photocopies of it, then stuff those copies in my closet and never do anything with them. Illegal? No. As soon as I give a photocopy to someone, then it's illegal. If some nincompoop gave me a hard time about this, I would tell them to bugger off. Of course, there are some nut-cases out there that you just may want to avoid due to self-preservation issues.
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fwiw
In this case, “if you take a picture, you are making a reproduction and that is a copyright violation,” Prof. Sprigman said. And that applies even if you are just planning to hang the reproduction for your own private use (http://bucks.blogs.nytimes.com/2010/09/21/when-its-illegal-to-photograph-artwork/). “That’s still a violation,” he said.
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My sign says, "You photograph it, you've bought it".
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That's closer, Isaac, but I am not (yet) completely convinced. The first part of the quite seems unquestionable, until it is again brought into question by introducing "private use." The use (hanging on the wall), even if private, is still a use, and I never questioned that. The whole article was about finding a cheap way to obtain a reproduction and put it on one's wall.
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If you right clip and copy a copyrighted image, that is a violation of copyright regardless of what you do with the now illegally obtained image. How is that different from taking a photograph of it in a gallery or at a show?
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fwiw
A photograph of an artwork is a derivative work, reproducing a three-dimensional public artwork in a two-dimensional form, which technically makes an unauthorized photograph an act of infringement (http://www.sculpture.org/documents/scmag05/may_05/webspecs/grant.shtml). Selling the photograph, or copies of it, only continues that infringement. Placing a work of art in the public realm doesn’t strip the work of its copyright. “There is no public presence exception to the copyright law,” said John Koegel, a New York intellectual property lawyer. “It doesn’t put the work in the public domain.”
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If you right clip and copy a copyrighted image, that is a violation of copyright ...
David, that is a statement, not a proof. I am interested in a relevant quote from the legislation that would support it, if any.
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His main claim is that "photographing art without permission is theft," even when standing on public ground, outside of the artist's tent.
From what I know, the very act of photographing something is not theft or illegal, but the subsequent use of the photograph for commercial purposes is.
Uh no...he's wrong. The doctrine of "Fair Use (http://en.wikipedia.org/wiki/Fair_use)" deals with this. From the Copyright Office (http://www.copyright.gov/fls/fl102.html): One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
So, the mere act of photographing a copyrighted artwork can't be an infringement or else there would be no fair use possible.
It boils down to what use a copy of a copyrighted artwork might be used for...And no, I'm not an IP attorney, but I know a bit about US Copyright law.
This guy is trying to use strong arm tactics to protect what he thinks are his rights-which pretty much conflict with copyright statutes...
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The question is: does taking a picture, standing on public grounds, outside the artist's tent, of the tent's contents, constitute a theft or "conspiracy to engage in copyright piracy" or not.
And the answer is: no.
Jeremy
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The bottom line is, IMO, that certain people need to be whole lot less uptight about casual photographers taking pictures. Fact is, if a photographer did want to take photos for nefarious purposes they could easily do so without anyone knowing.
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Hi Slobodan FWIW, I did the art fairs for a few years and from what I saw it was ALWAYS the ones that weren't selling anything or had little or no booth traffic that had that kind of attitude. I'll never forget one guy in particular that was right next door to me who actually told 3 or 4 people that were talking in front of his booth "not to congregate as they were blocking other customers" well they came into my booth and bought several pictures. :)
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I'm not a lawyer and the following comments do not constitute legal advice.
So, the mere act of photographing a copyrighted artwork can't be an infringement or else there would be no fair use possible.
afaict an unauthorized photograph of a copyright art work is technically an act of infringement; then the question becomes - is that infringement covered by the fair use exception.
"Unfortunately, if the copyright owner disagrees with your fair use interpretation (http://fairuse.stanford.edu/overview/fair-use/), the dispute may have to be resolved by a lawsuit or arbitration."
Public Art Lands Photog in Hot Water (http://petapixel.com/2010/02/03/public-art-lands-photog-in-hot-water/)
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Some context:
-- Stealing Intellectual Property at the Art Fairs (http://www.artfairinsiders.com/profiles/blogs/intellectual-property-theft-at-the-art-fairs)
-- Art Basel Week: Can I Take a Picture of a Picture? (http://artlawjournal.com/art-basel-week-can-take-picture-picture/)
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-- Stealing Intellectual Property at the Art Fairs (http://www.artfairinsiders.com/profiles/blogs/intellectual-property-theft-at-the-art-fairs)
I'd love to feel that anything I'd produced was worth that kind of effort to copy. Sadly, I have too much self-knowledge.
Jeremy
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Photo any damn thing you want.
Carry pepper spray, a 500 lumen tactical flashlight and a folding baton.
If they get aggressive blind them with the light. If they don't get the message, then the OC spray. Finally crack their head open like an eggshell with the baton as a last resort. If you want to be real nasty then use a folding knife and start cutting tendons.
...that is how I do it on the street.
In the UK, they can't have pepper, a baton or a folding knife. Them poor bastards have to use WD40 or a sharp pencil.
People are very nasty nowadays. First and foremost the photographer must protect themselves from the attack of their subjects. In Europe I don't have to worry about guns. In the US, guns are always a concern. If you see someone grabbing for something to attack you they get sprayed and taken down...hard!
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"Note that the right to photograph does not give you a right to break any other laws." Know Your Rights: Photographers (https://www.aclu.org/free-speech/know-your-rights-photographers)
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Hi Slobodan;
Well, I am a lawyer, although I have litigated more trademark than copyright stuff in a prior phase of my career. The laws in Canada, US and for that matter most common law countries throughout the world are pretty similar. There is generally no copyright law prohibiting photographing of private property from public property (there are very rare exceptions, usually dealing with national security). There MAY be restrictions on unauthorized reuse, but generally that prohibition would be stronger coming from the Fair management side as an implied term of your ticket purchase, not the exhibitor.
In this case, the guy is clearly a deranged nut bar. If I shot a photo of his, ahem, "art", and he tried to grab my camera on the basis of his warning sign (hint: a good sign you are dealing with several degrees of crazy is to look for the word "conspiracy" somewhere in the warning, and the sign is laughable, BTW), I would likely be able to file a criminal complaint seeking to have him charged with assault, threatening, AND sue him civilly for same.
If the fair had a general prohibition against photographing the exhibitors, that could be a term of your attending, and then only maybe, in terms of prohibition. Think of the usual restrictions on carrying a big camera into a rock concert for example.
So, snap away, and tell the guy to go and **** himself if he continues to hassle you.
Leigh
zippski
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If the fair had a general prohibition against photographing the exhibitors, that could be a term of your attending, and then only maybe, in terms of prohibition. Think of the usual restrictions on carrying a big camera into a rock concert for example.
Yep...that is the only way to prevent the casual shooter from shooting. But this isn't based on copyright, this is a contractual aspect of access. If one agrees to the terms of access (by accepting some sort of terms by entering) then an argument could be made that "no photos allowed" comprises a breach of contract if you take photos. But this has zero to do with copyright...
Interesting digression, I was in Florence, Italy and went to the museum that houses the David sculpture...it says "no photos allowed" and that purely pissed me off. So, I spent about a half hour shooting covert images of David (the original statue)...I even got a great shot of David's butt (an angle you hardly ever see). I personally was proud of myself for intentionally violating the museum access rules! My wife was horrified...but she really like the shot I did of David's butt. I'm gonna make a print for her birthday (but not offer it for public sale).
Here in Chicago, unless the showing is of a living artist (where copyright comes into play) the Chicago Art Institute does NOT disallow photography...they don't allow flash photography (said to be destructive to the artwork and disruptive to other viewers) and they don't allow tripods (without express prior permission).
As far as I know, it's the same deal for the Met in NYC.
There is a big difference in controlling "access" vs controlling "copyright". It's far easier to control access than copyright. And if the work is in the public domain, the whole "copyright" issue is, spurious...
YMMV...
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-- Art Basel Week: Can I Take a Picture of a Picture? (http://artlawjournal.com/art-basel-week-can-take-picture-picture/)
Yeah, ya know, the author of the article seems to have used a Richard Misrach image (sure looks like his work) as the lead illustration to his article. So, is that Fair Use? Hum...
The phrase: Be Careful Who You Listen To comes to mind...
Yes, Fair Use is tricky...but it's based on the context of the use, not the act of making a reproduction (as in a photo of an artwork). If taking a photo of an artwork was prohibited by "copyright law" then one couldn't actually engage in legitimate fair use.
So, no...the mere act of taking a picture of an artwork isn't an infringement...trying to do anything outside of the scope of fair use would be...
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"Note that the right to photograph does not give you a right to break any other laws." Know Your Rights: Photographers (https://www.aclu.org/free-speech/know-your-rights-photographers)
"Specialist subject: the bleedin' obvious." Basil Fawlty.
Jeremy
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Although signs posted said No Photographs, it stopped very few from snapping away at the David and in the Sistine Chapel, flash and non-flash alike. I confess to snapping a few with my cell phone just so I fit in.
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... I confess to snapping a few with my cell phone...
Did you buy it? :P
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... (hint: a good sign you are dealing with several degrees of crazy is to look for the word "conspiracy" somewhere in the warning...
Leigh, thanks for the legal perspective. One question, though: isn't "conspiracy" a valid legal concept, i.e., "an agreement between two or more persons to commit a wrongful act"?
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-- Art Basel Week: Can I Take a Picture of a Picture? (http://artlawjournal.com/art-basel-week-can-take-picture-picture/)
Yeah, ya know, the author of the article seems to have used a Richard Misrach image (sure looks like his work) as the lead illustration to his article. So, is that Fair Use? Hum...
The phrase: Be Careful Who You Listen To comes to mind...
The 3rd paragraph states that the photographer is Antoine Rose.
That paragraph tells us the Emmanuel Fremin Gallery shows both Antoine Rose's photographs and the blogger's photographs.
So, no...the mere act of taking a picture of an artwork isn't an infringement...
Can it be an infringement before a court has found it to be an infringement?
From the 6th paragraph "But remember, this [fair use] is a defense, so it only has value after you are asked to remove the work or are sued, which copyright holders can still do, regardless of whether we think it is fair use."
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... Can it be an infringement before a court has found it to be an infringement?...
Can you be (legally) guilty before a court has found you guilty?
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Equivocation often results in misunderstanding.
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Leigh, thanks for the legal perspective. One question, though: isn't "conspiracy" a valid legal concept, i.e., "an agreement between two or more persons to commit a wrongful act"?
Conspiracy is a valid concept, but your definition hits the nail on the head and demonstrates the absurdity of the notice you quoted: "two or more persons". You can't conspire with yourself. I agree with Leigh, though: use of the word out of valid context gives rise to a rebuttable presumption of insanity.
Can you be (legally) guilty before a court has found you guilty?
Of course you can. You are presumed to be innocent; but whether you are or are not guilty depends on the facts, which exist before the matter comes before a court.
Jeremy
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Equivocation often results in misunderstanding.
Equivocation often arises from misunderstanding.
Jeremy
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Can you be (legally) guilty before a court has found you guilty?
Of course you can.
No.
… whether you are or are not guilty depends on the facts, which exist before the matter comes before a court.
"[W]hether you are or are not [factually] guilty depends on the facts"; whether you are or are not "(legally) guilty" depends on a court saying you are or are not guilty.
Factual Guilt vs. Legal Guilt (http://blog.bennettandbennett.com/2007/04/factual-guilt-vs-legal-guilt.html)
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The 3rd paragraph states that the photographer is Antoine Rose.
Yeah, but, ya know...I've seen a lot of Richard Misrach's work and the image sure looks like a rip off...just sayin'
So, there ya go...was Antoine Rose copying Richard Misrach's work? Sure looks like it...is that "fair use" or a copyright infringement? Maybe it's fair use?
None of this stuff is written in stone...it's always open to interpretation–except for the fact that "people" are free to make use of fair use–which implies that the act of photographing a copyrighted work is not, in itself, a de facto infringement. Right?
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"[W]hether you are or are not [factually] guilty depends on the facts"; whether you are or are not "(legally) guilty" depends on a court saying you are or are not guilty.
Factual Guilt vs. Legal Guilt (http://blog.bennettandbennett.com/2007/04/factual-guilt-vs-legal-guilt.html)
He's writing drivel. It's the kind of pointless mental gymnastics1 those of us who have, on occasion, had to defend people we "knew" were guilty have indulged in from time to time, to sate our conscience's desire for peace. He's confusing fact with presumption and creating an artificial distinction which is baseless.
Jeremy
1 I almost used the ma...bation word there instead of "gymnastics". It would have been valid, and the nicely alliterative term is one of widespread application, which I rather like.
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He's confusing fact with presumption and creating an artificial distinction which is baseless.
No. The doctrine of legal guilt is basic to the US legal system.
pdf "doctrine of legal guilt (http://highered.mcgraw-hill.com/sites/dl/free/0072972092/138828/bohm4eup_chap01.pdf) -- The principle that people are not to be held guilty of crimes merely on a showing, based on reliable evidence, that in all probability they did in fact do what they are accused of doing. Legal guilt results only when factual guilt is determined in a procedurally regular fashion, as in a criminal trial, and when the procedural rules designed to protect suspects and defendants and to safeguard the integrity of the process are employed."
page 18 Introduction to Criminal Justice (http://books.google.com/books?id=je6DngEACAAJ)
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I never thought I would actually say this, but I agree with Isaac on this one ;D
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I'm not a lawyer and the following comments do not constitute legal advice.
The author, a painter, made several claims that I find dubious from a legal perspective…
afaict That painter wants a way to prevent copyright infringement taking place, but that is not what copyright law provides. Copyright law provides a way to compensate the copyright owner for an infringement that did take place, and impose penalties severe enough to deter future infringements.
Even if you do take a photograph that as a matter of fact does infringe copyright; unless that photograph is made available to the copyright owner, and their attorney, and a court…
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Right again, Isaac.
In that respect, the painter's intention reminds me of the movie Minority Report, with Tom Cruise. For those not familiar with it, it is a sci-fi movie where people with psychic powers to envision future are used by a special police unit, called PreCrime, which then prevents crime from happening. Alternatively, such intention has also been known, outside of the science fiction realm, as "preemptive strike," and mostly considered illegal.
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Yeah, ya know, the author of the article seems to have used a Richard Misrach image (sure looks like his work) as the lead illustration to his article. So, is that Fair Use? Hum...
So, there ya go...was Antoine Rose copying Richard Misrach's work?
If you actually read that blog post, you'd find that it covers the points you're trying to make ;-)
Meanwhile, here's the Richard Misrach photo (http://fraenkelgallery.com/wp-content/uploads/2012/02/1132-2004-744x570.jpg) that's most like Antoine Rose's photos (http://emmanuelfremingallery.com/project/antoine-rose-2/). (From Richard Misrach: On the Beach Part I (http://fraenkelgallery.com/portfolios/on-the-beach).)
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It might be worth noting at this point that ideas and concepts are not copyrightable. So, the idea to shoot beaches from above can not be copyrighted. The exception would be if someone went to such an extreme trouble to recreate the exact beach scene as in, say Misrach' photo (which would not be too difficult, granted, given its relative simplicity).
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I never thought I would actually say this, but I agree with Isaac on this one ;D
Sadly, that's no more a good idea when he quotes selectively from a student textbook than at any other time. Read the surrounding context, and then move away from the sophistry.
Jeremy
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The facts certainly would make for a great law school exam question, which is my way of saying that the search for an answer assumes there is certainty in the law. There isn’t. Here is how I would approach the problem:
A. Copyright Infringement. If asked, I suspect a court would find copyright infringement if someone took a photograph of a piece of this artist’s work on display (setting aside fair use for the moment). Section 100 of Title 17 to the United States Code defines a copy as a “material object[], other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.” Even though the photographer has not made a print at the time of image capture, the work can be perceived, reproduced, or otherwise communicated from the SD card or film. That conclusion is consistent with the widely held belief that a copyright comes into existence when the photographer clicks the shutter button.
This conclusion is also supported by the DMCA (Digital Millennium Copyright Act), which limits the liability of online service providers for transitory communications and system caching, among other things. I am not all that familiar with these provisions, but the need for these sorts of exceptions supports the notion that digital copies are still copies. You will also see similar exceptions in social media site terms of usage, suggesting that the site's lawyers advised them that merely storing or caching digital information constitutes copying.
B. So What? The next question: So what, or what are consequences if there has been a copying? If the artist has not filed a timely copyright registration with the U.S. Copyright Office, he is not entitled to statutory damages. Under 17 USC 504(b), the copyright owner is entitled to “recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” The determination of damages is quite involved, but many individuals who consider bringing suits based on copyrights that were not timely registered find that proving damages is very difficult and expensive. This is often why people don’t bring suits. It is also why photographers should timely register their copyrights, assuming they plan to take action in the event of infringement.
C. Fair Use. I would be reluctant to rely on fair use because it involves a factual determination, which means in many cases, the decision could go either way. In many instances, fair use does not provide a predictable conclusion.
If the photographer is just snapping a photo of the piece of work and not transforming it, he should be hesitant to rely on a fair use defense. There has been litigation over artwork. You may want to review the recent case involving Richard Prince’s art that incorporated photographs by Patrick Cariou. It addressed what constitutes a transformative use. For another recent lawsuit, see the dispute between sculpture James Mackie and photographer Mike Hipple. It settled. There are other disputes, but these two layout some of the issues and uncertainties that come with a fair use defense.
D. Public Place. Unfortunately the original post doesn’t provide enough information about where the art fair took place or who sponsored it. I, however, would not assume that just because it took place in plain view or in a public park or street, that image capture is automatically permissible. While it is true that image capture in traditional public forums like parks and streets is constitutionally protected, there are circumstances where it may not be. For example, suppose it was not the city government that sponsored the event, but that the city licensed the park to a nonprofit organization for the festival and the fair took place within a fenced area. There is case law that would support the organization imposing limitations on photography. The case for restricting photography strikes me as a harder one if the city sponsored the event, but I am not entirely clear on whether the city could impose a limit under certain circumstances. Suppose, for example, that a performer at a city-owned park imposed contract restrictions against photography and the city were the sponsor of the event. That poses an interesting constitutional question. We have entered the realm of First Amendment forum analysis, which is a complex area of constitutional law built on a foundation of quicksand.
E. Conspiracy. As was pointed out, a conspiracy requires more than one person, so it is hard to see the basis for the statement in the artist’s notice.
F. A Contract to Surrender Card/Camera. This is an interesting provision, that raises a number of issues. It is clear that a person’s actions can constitute an acceptance that results in a contract. So maybe there is a contract. But one might ask, what is the consideration?
Assuming there isn’t a contract, it could be argued that this provision represents the use of state law to pre-empt federal copyright law. That could be problematic given that the U.S. Constitution makes copyright exclusively a federal right.
There is also the question of forcefully taking the photographer’s camera or SD card. We know that this raises constitutional questions under the 4th Amendment when the police do it, but what about a private citizen. There are state statutes that permit private persons to detain someone under certain circumstances. See CAL. PENAL CODE § 837, for example. The question is whether such a statute is available, and if it is, whether it draws a distinction between detention and taking the photographer’s camera or SD card. If the statute doesn’t draw a distinction, does acting pursuant to such a provision raise 4th Amendment issues? I would bet there is an answer given the use of such statutes by retailers to detain shoplifters, but I am unfamiliar with this area of the law.
G. Final Thoughts. At the end of the day, I return to the post by Chaz, “I think the proper thing to do is ask the artist permission before trying to photograph their art. If they say no, move on. Sometimes there does not need to be a written law for one to still exists. Common sense covers a lot of ground between laws.” A couple of points about this post are warranted. First, while I agree with Chaz’s sentiment, I think the response is inappropriate given the question. When someone asks about their legal rights or duties, the answer should focus on legalities rather than ethics. Once we know the answer to the legal question, we can talk about ethics, but making an ethical argument does not answer the legal question.
Second, if the photographer came to my office and I were retained to give legal advice, in light of the foregoing, I would ask why do you want to make the photograph. Unless there is a darn good reason, I would advise taking a photograph of something else. That is not an ethical response, but one that balances legal uncertainties and the potential risks against the benefits of proceeding. As of late, this is where I have been coming down with my own photography. With so many interesting photographic opportunities in the world, for me, it is easier to look for something else to photograph. Moreover, in this particular case, I am sympathetic to a guy who is trying to make a living in a tough business, but that is not a legal response.
Of course, you cannot rely on any of this as legal advice. I don't know your particular facts or risk tolerances, so I cannot give you legal advice on web forum. If you have legal questions, retain a lawyer.
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If you have legal questions, retain a lawyer.
Thank you for that demonstration of why, if we have legal questions, we should retain a lawyer :-)
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He's writing drivel.
...he quotes selectively ...move away from the sophistry.
We can see that you believe you are correct but you haven't even tried to show why.
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... the search for an answer assumes there is certainty in the law. There isn’t. Here is how I would approach the problem:..
Thank you for the comprehensive answer. I agree about the certainty. If there is such thing in the law, we would not need two lawyers in every court case. Just one might suffice. Or none, a judge might be enough. :)
Just to make it clear. I am not personally involved in the OP case, other than participating in a debate about it in a web forum. It was just an intellectual curiosity in asking for a legal point of view, as certain things are more certain than others, even in the law. Another point being that the painter in question made it sound way more certain (in favor of his point of view) than I believe is warranted.
As for me, I rarely have the urge to photograph other people work, let alone use it or misuse it, and I was often surprised to see a no-photgraphy sign in art fairs (until recently, that is), as I could not figure out why. Perhaps because I know how difficult it actually is to photograph a painting properly, and that a casual snap can not possibly result in anything seriously reproducible.
When I did want to take a picture of something, it was mostly to serve as a visual note or remainder for something to check out later. In which case I would ask for permission and move on if not given.
Before my own first art fair, I visited a couple of nearby art fairs with the explicit purpose of figuring out what kind of tent I need, and other minor issues, like tent weights, director stools, etc. And I snapped a number of pictures of various tents, weights, etc. with the idea to check it out later on the web for manufacturers, prices, etc.
Having said all that, I would be very, very pissed off in someone confronted me in any but most polite way or demanded to surrender my camera, memory card, or delete my pictures. As another forum member mentioned, a photographer approached in that way by an artist actually called the police and accused the artist of assault. Probably something I would do as well.
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As I watched this thread develop over the weekend, the assault issue came to mind. I agree. Even assuming the artist can legally rely on his sign, there is the issue of just how physical he can get before crossing the assault line. A similar issue exists when you are the on street and someone tries to steal your camera. How much force an use in your response?
While there are obviously clear answers to many legal issues (your lawyer will tell you that you cannot murder someone you don't like), in many areas that matter to photographers (fair use, publicity and privacy rights, e.g.) there is a lot that depends on the particular facts and circumstances, and even then, the underlying law is often unclear. The correct answer or response is to fashion an approach that reduces risk to a level that is acceptable to the particular photographer, which is why discussions on Internet photography forums are fun, but usually fruitless. People are looking for or believe they have a clear answer. There often isn't one.
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... Conspiracy. As was pointed out, a conspiracy requires more than one person, so it is hard to see the basis for the statement in the artist’s notice....
In fairness to the artist in question, the conspiracy claim stems from stories about sweatshops in Asia engaged in churning out copies of work obtained from "photographers" visiting art fairs here.
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We can see that you believe you are correct but you haven't even tried to show why.
I have. You aren't sufficiently important, Isaac, and I don't care enough whether you believe me or not, for me to waste any more time on the point.
Jeremy
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You aren't sufficiently important, Isaac, and I don't care enough whether you believe me or not, for me to waste any more time on the point.
I'll bear that in mind.
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I haven't read the first three pages of this, but why would anyone take a photograph of anything, if they did not intend to use it.
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I haven't read the first three pages of this, but why would anyone take a photograph of anything, if they did not intend to use it.
Not sure what you are referring to, but the issue is not really the "use" itself, but the misuse for copyright infringement, especially the kind that affects copyright owner's income. There are many uses, notably the fair use concept, that are legitimate, and then there are uses that might be infringement technically but are innocent in nature or even beneficial to artists or shows (for instance, when publishing photos of artworks to social media provides free publicity and attracts larger crowds to the show or artists).
As for the general part of your question, why we shoot anything, it shall be noted that most photographers have "twitchy" fingers and shoot things instinctively, whenever they see something interesting (kind of "shoot first, ask questions later"). That we may never use it, might be hard to believe, but is easy to prove. For instance:
Though he [Garry Winogrand] shot more than a whopping 25,000 rolls of film in his lifetime, he often delayed in developing and proofing them. At the time of his death, approximately 2,500 rolls of undeveloped film were found, as well as 6,500 rolls of developed but un-proofed exposures and stacks of unseen contact sheets made from an estimated 3,000 rolls of film.
Or probably the undisputed queen of "never used" shots, Vivian Mayer:
Out of the more than 100,000 negatives... in the collection, about 20-30,000 negatives were still in rolls, undeveloped...
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Not sure what you are referring to
Ok, a more verbose answer.
I am not a lawyer and every country is different, but generally when legal things fall into grey areas a judge is called upon to make a judgement decision. That is usually based on some sort of test of what a reasonable person would think.
To me at least, if a person with fairly advanced photographic experience or a professional with reasonably advanced equipment takes a photograph of someone else's material in a manner that is not incidental but fills the frame then that person intends to use that image in some way. That to me is a copyright infringement. If it's for inspiration then either buy it or remember what it looked like.
To say you weren't going to use it in some way is really like being caught with a container of copied CDs and saying they were for personal use.
As for research and education use that is also fairly questionable. You can generally use a small percentage of a work with appropriate acknowledgements. However at least in Australia a school band of a dozen playing in a park must have 12 original copies of the music to present if asked.
I think if you wish to photograph someones's art work then you should ask permission and if they decline thank them and walk away.
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It's my understanding that editorial use is allowed under copyright law while commercial use is not. If the professional pointing his camera at your stuff works for a newspaper or magazine that's doing an article about art shows, then copyright does you no good at all. He or she can take to picture and those images can be published. If they are using those images to promote the art show it's a different story because that's commercial use.
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The question is: does taking a picture, standing on public grounds, outside the artist's tent, of the tent's contents, constitute a theft or "conspiracy to engage in copyright piracy" or not.
In Canada, no.
The only real issue comes up with regard to people in the image, and then it becomes a civil case if someone wants to sue for invasion of privacy. Here the courts get to decide whether the image was of _____ and happens to have a person in it, or whether the image is of a person with _____ as a backdrop. The (perceived) invasion of privacy would take place at the moment of capture, no matter what was done with the image afterward.
Can't answer for other countries, though.
Speaking for myself, if I saw a sign like that I'd steer a wide berth of that person AND whatever they had for sale. It reminds me of a car I saw once at a highway restaurant in northern Ontario. On the rear passenger window was a poster with the woman's face (presumably the owner), and "IF YOU SEE ANYONE IN THE CAR WITH ME CALL THE POLICE". I thought, "I wouldn't get in the car with you if you paid me." California plates, but paranoia doesn't have a postal code.
Mike.
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I ran into this situation directly in two different ways.
First situation, friends of mine, at a show in Toronto, chasing off photographers. These same people had been around the year before at the same show (it runs every year) , photographing their wares, and six weeks later guess what shows up in Toronto - cheap copies, low quality knock offs, made overseas, flooding the market. Sure they complained, but there is so much forgery of brand name products showing up at flea markets and trade shows, nobody form customs to the police can keep up with it.
So, when they showed up again, that's why they physically chased them away. My friend told me he would of punched the guy in the face had he the chance. He then would of loved to call the police himself because it might of been the only time to catch the guy and have him charged with counterfeiting. That might sound harsh, but apparently the other guy (the forger, with the camera) knew that too and got the heck out of there in a hurry.
Second situation - this past February, the annual art fair and show in Key West. Been there a few times, some really nice stuff. Took many photographs this year, and years past. Never an issue. Why? First off, I never, ever, ever take photography up close. Secondly, I only walk around with a prime wide angle lens, never a zoom, and I only take general crowd shots.
IMO, it is all common sense. Also in Key West, I walk around a whole day, visiting the different private art galleries with my camera, never an issue. Why, i keep my camera slung behind my back. They all have big signs in those private stores - no photography, so I don't. About the most that ever comes is "sure, you can take a photo photo of the front of the store on the street" or maybe " hey, that's a nice camera." Never an issue.
Also down in Key West, and maybe a bit off topic, but if you ever visit Fort Zachary Taylor state park, and see the old civil war fortress, you will see that a big, active military base right next door. Litterally next door. You see big, big signs, no photographing the military. Nada. I stand there, camera slung, nod hello at some of the military people who look at me and make eye contact, and i almost always get a polite nod back. Then some idiot stands beside me, points their little compact or smart phone or even iPad (the number of people who walk around Key West with iPads shooting photos is sometimes mind boggling), and boy oh boy, do they get a dressing down.
So to me, this whole issue boils down to common sense. Let me go back to the Key West art fair. A number of those people/artists selling products were photographers selling prints. Same for some of the private art galleries in Key West. Talked to several of them, the art fair and the galleries. All of them have "no photos" signs or something similar. All of them I talked to in one way or another have stories about people photographing their work, and then using it on a web site or selling a copy cat forgery or something similar.
To me, it all boils down to respect for fellow photographers, nothing more.
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I am getting tired of this presumption of guilt. We are treated as terrorists when photographing buildings, as pervs when photographing children, and now as thieves at art fairs.
And now angry artists mob lynching? Looks like I'd need that pepper spray for more species than just bears.
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My friend told me he would of punched the guy in the face had he the chance. He then would of loved to call the police himself because it might of been the only time to catch the guy and have him charged with counterfeiting. That might sound harsh, but …
…
IMO, it is all common sense.
Does it strike you as common sense that if your friend had "punched the guy in the face" the police may have regarded that as criminal assault (http://laws-lois.justice.gc.ca/eng/acts/C-46/page-131.html#h-83)?
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Thank you for the comprehensive answer. I agree about the certainty. If there is such thing in the law, we would not need two lawyers in every court case. Just one might suffice. Or none, a judge might be enough. :)
Just to make it clear. I am not personally involved in the OP case, other than participating in a debate about it in a web forum. It was just an intellectual curiosity in asking for a legal point of view, as certain things are more certain than others, even in the law. Another point being that the painter in question made it sound way more certain (in favor of his point of view) than I believe is warranted.
As for me, I rarely have the urge to photograph other people work, let alone use it or misuse it, and I was often surprised to see a no-photgraphy sign in art fairs (until recently, that is), as I could not figure out why. Perhaps because I know how difficult it actually is to photograph a painting properly, and that a casual snap can not possibly result in anything seriously reproducible.
When I did want to take a picture of something, it was mostly to serve as a visual note or remainder for something to check out later. In which case I would ask for permission and move on if not given.
Before my own first art fair, I visited a couple of nearby art fairs with the explicit purpose of figuring out what kind of tent I need, and other minor issues, like tent weights, director stools, etc. And I snapped a number of pictures of various tents, weights, etc. with the idea to check it out later on the web for manufacturers, prices, etc.
Having said all that, I would be very, very pissed off in someone confronted me in any but most polite way or demanded to surrender my camera, memory card, or delete my pictures. As another forum member mentioned, a photographer approached in that way by an artist actually called the police and accused the artist of assault. Probably something I would do as well.
Rather than being sneaky and secretly snapping some photos of the various tents...maybe coming up and talking to the artists about their setups might have lead to much more information than a simple picture. Communications usually clears up most misunderstandings and usually leads to what you are after much more efficiently and effectively than some form of voyerism.
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I am getting tired of this presumption of guilt. We are treated as terrorists when photographing buildings, as pervs when photographing children, and now as thieves at art fairs.
And now angry artists mob lynching? Looks like I'd need that pepper spray for more species than just bears.
So you are OK if I stand on a neighboring deck with my telephoto and photograph your young children in bathing suites as they run through sprinklers?
From public property photographing just for the hell of it. Innocent of being a perv until proven guilty...right?
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So you are OK if I stand on a neighboring deck with my telephoto and photograph your young children in bathing suites as they run through sprinklers?...
Yes, absolutely. What is wrong with that? Sounds like a great photo opportunity to catch a spirit of childhood.
Even "creepier" scenarios than that have been backed by courts (http://nypost.com/2013/08/09/judge-backs-the-right-of-creepy-tribeca-artist-to-photograph-people-through-their-windows/).
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I am not sure I agree, or at least I would be careful. I take the position that if it is in plain view and I am not trespassing, I generally have a right to photograph it, but there may be some exceptions. But assuming the general rule applies, I would always be careful with children, particularly ones in swimming suits.
Here is why: I was taking a workshop with another photographer. He reported that he was in a public park, saw children on a slide, and snapped some photos without thinking much about it. I don't know this guy well, but I would be shocked if he were a pedophile. He is an amazing photographer. An hour later, when he was back at home, his doorbell rang. A police officer was standing there. The officer informed the photographer that several parents had complained about him. The police officer wanted to look at the photographer's camera and computer. This is where we get into tricky territory. The photographer consented to the search even though there was no warrant. After an hour, the police officer concluded that the photographer did nothing wrong and left. The photographer nevertheless felt violated. So you have to take into account the hassle factor: It may be legal to do something, but is it wise?
I spoke with a former criminal court judge about this incident. He indicated that a court probably would not have granted a search warrant on these facts, but that he would have advised a police officer who was concerned to continue to follow up to build a basis for a warrant. That could have meant more surveillance. In the end the photographer had nothing to hide, so consenting to the search was probably the right decision. Of course, there are photographers who would deny access, and that is there right.
It is also worth noting that several states have in recent years enacted laws about photographs intended to arose one sexually. I believe one of these laws was inspired by a photographer photographing women on a beach. There is also the recent California anti-papparazzi legislation. If they haven't already been, we can expect laws like these to be subject to constitutional challenge, but do you want to be the test case? Once again, it comes down to how badly do you want the photograph, do you recognize the practical risks, and have you taken the action to minimize those risks.
By the way, the New York Post article sensationalizes the story by using the word "creepy." I read about these photographs and they are not creepy. There was a lot of artistic thought and theory put into making them. This wasn't an amateur photography. Someone who saw them in a gallery was knocked out by them. I was a bit surprised about the case from the standpoint of privacy rights, but I didn't have all the facts. I think that everything the photographer captured would have been visible to the naked eye standing on the street, although I am not sure. However, the case turns out to be a potentially important one in the publicity rights realm.
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Yes, absolutely. What is wrong with that? Sounds like a great photo opportunity to catch a spirit of childhood.
Even "creepier" scenarios than that have been backed by courts (http://nypost.com/2013/08/09/judge-backs-the-right-of-creepy-tribeca-artist-to-photograph-people-through-their-windows/).
So you are ok with a stranger peering into your backyard and photographing your children without your consent?
I sure in the hell am not and if you did that to my children, you'd be eating a 5 knuckle sandwich in no time. Sometimes being within the law does not me you are right....and this is one of those cases.
Being right and stupid at the same time.
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So you are ok with a stranger peering into your backyard and photographing your children without your consent?
I sure in the hell am not and if you did that to my children, you'd be eating a 5 knuckle sandwich in no time....
Ah, now you are creepy-tizing the scenario. First it was a neighbor, now it is a Peeping Tom? I think there is probably a legislation against Peeping Toms somewhere.
Look, if my child (and I do have a young daughter) is playing in public view of the neighborhood, she will be dressed properly (i.e., not naked) and behaving properly, knowing that she is in public view. There is no reasonable expectation of privacy in such a case. If a neighbor can see her from his deck, he/she can photograph her too, I have no problem with that. Otherwise, we would not be able to see gazillion photographs like these (http://www.bing.com/images/search?q=chlldren+playing+sprinkler&qpvt=chlldren+playing+sprinkler&FORM=IGRE) (warning: NSFW... might see a naked toddler occasionally ;)). Or we would not be able to see some iconic photography throughout history, containing children, of enormous documentary and artistic value.
As for your "sandwich," remember that sandwiches have both ends.
The really creepy thing about all this is the idiotic puritanic attitude and herd mentality. If Michelangelo’s David would come to the States*, I am sure there will be demands for it to wear pants. If you think that is ridiculous, consider the already existing case of a Midwest hotel, who had a similar sculpture in its lobby, and had to put pants on it at the request of seminar participants.
The really creepy thing is that people get arrested, fired from work, careers ruined, kids turned to social services, etc., for the "crime" of having pictures of their own little children while taking a bath, just because some sanctimonious jerk and real creep reported them to the police. Herd mentality then kicks in, they are fired, etc. Never mind that courts later on decide in their favor. What is next? Shall we invite social services every time we bathe our kids?
* Ah, yes, speaking about that visit:
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Rather than being sneaky and secretly snapping some photos of the various tents...maybe coming up and talking to the artists about their setups might have lead to much more information than a simple picture. Communications usually clears up most misunderstandings and usually leads to what you are after much more efficiently and effectively than some form of voyerism.
I was not sneaky nor secretly snapping. Did it in plain view, and as I explained on several occasions, I was just taking visual notes, e.g., a tent label containing web site and/or phone number, instead of pulling a notebook and pencil and writing it down. And I had numerous talks with artists, prior to coming to this show and at the show. But thanks for lecturing.
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The really creepy thing about all this is the idiotic puritanic attitude and herd mentality. If Michelangelo’s David would come to the States*, I am sure there will be demands for it to wear pants.
Or those heavy knee-length swimming outfits.
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Does it strike you as common sense that if your friend had "punched the guy in the face" the police may have regarded that as criminal assault (http://laws-lois.justice.gc.ca/eng/acts/C-46/page-131.html#h-83)?
Yes. For the record, that is *exactly* what he was hoping for. He was suffering financially because of the copycat conterfeitting, he felt the police we useless, so he exactly wanted something like that to happen so he could go the media with it all. You see, one small part of the problem is the police could never find the guy, so if that guy laid criminal charges for assault, he in turn would of been right there for the police to arrest and for the summons servers to serve him the papers for a civil lawsuit too.
Hell of a system we live in, isn't it?
:(
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Here is why: I was taking a workshop with another photographer. He reported that he was in a public park, saw children on a slide, and snapped some photos without thinking much about it. I don't know this guy well, but I would be shocked if he were a pedophile. He is an amazing photographer. An hour later, when he was back at home, his doorbell rang. A police officer was standing there. The officer informed the photographer that several parents had complained about him. The police officer wanted to look at the photographer's camera and computer. This is where we get into tricky territory. The photographer consented to the search even though there was no warrant. After an hour, the police officer concluded that the photographer did nothing wrong and left. The photographer nevertheless felt violated. So you have to take into account the hassle factor: It may be legal to do something, but is it wise?
-snip-
Ran into something similar myself a few years ago myself. I was photographing a recently painted mural on the outside wall of a public building. An angry father came charging at me saying I was photographing his child in the yard next door, whom I did not even notice, nor photograph. Make a long story short, there was no talking to this guy, but as the old Kenny Rogers song goes, sometimes you have to know when to fold them and walk away.
Not saying it is right, not saying I like it or I agree with it, and not saying I like how things are going anymore. I will also say for the record, it amazes me how everywhere you go there are security cameras all over the place and how the general public feels "safer" with these cameras, but that same general public, including sometimes police, will freak out at a guy with a camera shooting the same streetscape that is already covered by those video cameras.
Nope, makes no sense at all, but in the real world, you gotta use a bit of street sense and choose your battles when you can.
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if that guy laid criminal charges for assault, he in turn would of been right there for the police to arrest and for the summons servers to serve him the papers for a civil lawsuit too.
Was that expected to be some kind of defense against criminal charges for assault?
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... he in turn would of been right there for the police to arrest and for the summons servers to serve him the papers for a civil lawsuit too.
To arrest for what!? For being the victim? "Officer, this guy was taking photographs... arrest him!" Seriously!? The most you could do is to get his contact details for a civil suit. But you (rhetorical you) are going to charge him with what? Taking pictures!? You should be able to prove the link between him and the counterfeited goods, something even police would need to spend quite some time investigating and building the case. Not to mentioned that the price to pay for all that is your own assault charge, which might lead to jail time.
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…it amazes me how everywhere you go there are security cameras all over the place and how the general public feels "safer" with these cameras, but that same general public, including sometimes police, will freak out at a guy with a camera shooting the same streetscape that is already covered by those video cameras.
Nope, makes no sense at all…
Let's make sense of it for you -- CCTV seems to have been accepted as a legitimate way "to protect" property and more generally "to protect" the public going about their business.
Is GwC seeking "to protect" his property or "to protect" the public? So what is GwC doing and does he need my permission to do it? Do I want GwC to take photographs of me and mine (or my art work)? Do I want to be an unpaid model?
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The really creepy thing is…
Unfortunately there are other nightmares.
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Some context:
-- Stealing Intellectual Property at the Art Fairs (http://www.artfairinsiders.com/profiles/blogs/intellectual-property-theft-at-the-art-fairs)
I didn’t read the second article, but thought it somewhat amusing that an article intended for artists in Art Festivals about those copying their work is pretty ironic, since painters at this level frequently copy a photograph they didn’t take.
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Yes. For the record, that is *exactly* what he was hoping for. He was suffering financially because of the copycat conterfeitting, he felt the police we useless, so he exactly wanted something like that to happen so he could go the media with it all. You see, one small part of the problem is the police could never find the guy, so if that guy laid criminal charges for assault, he in turn would of been right there for the police to arrest and for the summons servers to serve him the papers for a civil lawsuit too.
Hell of a system we live in, isn't it?
:(
Man. There is so much fail in your friend's reasoning process in that scenario, I am not sure where to begin.
Let's just say that your friend would have likely have gained a criminal record, paid a lawyer several $1000s and the photos still would have been copied.
Then, he could plan on spending $20-$50K on the civil lawsuit (cash on the way through, no contingency fees here, I'm afraid)
Maybe, just maybe, he might win a likely uncollectable judgment...assuming he doesn't lose and is forced pay the other side's legal costs. Oh, and perhaps the defendants win on their counterclaim/setoff for the assault.
Leigh
zippski
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There is a new twist in the debate. A guy posted this (emphasis mine):
You can also post a small sign stating that there is a fee to photograph your work with your permission. This then makes it a criminal matter and the police can arrest them. It is called theft of services. Copyright is civil and that is why you won't get help from security or police. Theft of services is a criminal complaint and the police have no choice but to issue a citation with your complaint.
Hmmm...
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With all due respect, I have a modest proposal - seeing that this thread has reached an astonishing level of silliness, with all sorts of people carrying on about legal matters they are completely ignorant of, perhaps the thread should die a (long overdue) natural death. Really. Go take some photographs!
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... Go take some photographs!
Or feel free to stop reading this thread if you have no interest. I do.
Such is the nature of internet threads. Some people might post something silly, which then prompts other people to respond in a reasoned manner, advancing everyone's knowledge.
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I can't imagine the police taking action as a result of such a complaint
I agree to the demise of this topic before the issue of capital punishment is raised.
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There is a new twist in the debate.
Presumably you asked if they had been involved in a successful prosecution on that basis?
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…since painters at this level frequently copy a photograph they didn’t take.
It's strange but we all seem more concerned with our rights than the rights of others.
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In Issue #17 of Elephant magazine, there is a piece on how some leading fine art photographers today are using others' images to make their own art and they use so-called "found" images in the exact context that Marcel Duchamp used ready-made objects, which reminds me of "The bad artists imitate, the great artists steal" - the most famous quote of Picasso.
(http://www.frameweb.com/media/files/elephant17-p-177074_overview.jpg)
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Man. There is so much fail in your friend's reasoning process in that scenario, I am not sure where to begin.
Leigh
zippski
-snip-
For record, I am not saying I agree with the logic, nor even being an apologist for it, only pointing out some of what is going on out there.
Look, we live in a time when the economy is in terrible shape for many people. I know business people, not just photographers, we are having troubles just paying the basic expenses and bills. I am somewhat surprised how little attention that gets here. For example, it is estimated that 20% of all Americans are on food stamps. Does the poor economy not affect anyone where or is everybody posting on this forum in the 1%. I am serious, not saying that to be a troll or a jerk, I am quite honest.
so my point is this - the logic is flawed, perhaps even surreal, but the desperation is honest and real out there. Does it make sense? Do I like it? No. But on the flip side, another friend/business associate of mine recently committed suicide. Maybe I am wandering too far off topic, apologies if I do, but I have friends who life long photographers, professional artists, etc, who are just having a hard time making ends meet. That is all I am trying to point out.
And in these times, when factories and companies overseas are copying and counterfeiting every darned thing they can lay their hand on and ripping off artists and photographers here in North America right, left and centre, why is anyone surprised at the reaction they get shooting photographs at an art fair?
Let me go back to that Key West art fair. People are vetted to get in, and i have personally talked to some people who have travelled not just hundreds, but thousands of miles to get there. One guy as litterally a two thousand mile journey, round trip, there and back, to setup at that art fair.
Say any of you guys did something like that, took your prints down to that or some similar art fair, only to find out a few weeks later somebody copied your photographs and is now mass producing them out of a factory overseas and not paying you a penny, how would you feel? How would you really feel if you lost money on that art fair, you did it mostly for the exposure and the prestige and the advertising, and you found out all your potential sales went down the toilet because of that guy who copied your work?
then a month later, there is no money to pay the bills? How does a person respond then? Logic or desperation? Do you see where i am comming fomr now?
thanks for the soapbox and rant mode time
:)
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My brother-in-law is a fine craftsman. For many years he made antique reproduction furniture that was sold in several large catalogs and show-room furniture dealers. While the inspiration for the pieces were antique designs available to anyone, he had made some design and feature enhancements and his furniture sold well for years. Then the orders suddenly stopped. Overnight all of his orders just screeched to a halt. The funny thing was the furniture continued to be offered in the catalogs. His work had been reverse engineered and was manufactured in China. He sent letters and the replies said; Fine. Fight us in court if you think you can afford the legal fees.
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Visiting my local art show last weekend, I talked to a few exhibiting photogs there. Almost all of them told me the market for matted prints - small and inexpensive prints - has been in decline since 2008 while the market for more expensive large framed prints hasn't been affected at all. I remember one famously said there are only two classes in any society - the rich and the poor. If you market your "art" to the poor, well, in an economic setup in which the stock market performance has divorced itself from the economic reality, you get the message.
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Small prints don't command a good price at most art fairs because the apparent value just isn't there. That's because folks are used to 25 cent prints from Costco, etc. They also know that decent framing is extremely expensive, even for small prints. Add to that most art customers are also phone camera shooters with zero expenses, and if they like the shot they get a 25 cent copy printed anywhere. The cheap Costco type prints are also used by very many art show exhibitors, and that leads to them being able to further reduce the selling price in a sometimes misguided attempt to boost their sales.
Getting back to this topic's topic...I believe that the folks snapping art with their cell phone are just doing what the Kodak Brownie crowd did last century, snapping left and right simply to record an experience. The present generation can then just forward the image to friends with a few thumb jabs. I don't see much of any other motive. I think there's more damage done to the photographer by thieves who buy a small print at the art show, and steal the image that way via a good scan later.
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Small prints don't command a good price at most art fairs because the apparent value just isn't there....
How small is "small"? Would you consider, say, a 13x19 print, a small one? At, say, $125 (matted and bagged, but no frame)?
At the last show, I had only 20x30 canvases. For the next one, I was thinking of adding 13x19 inkjets, and a few, selected, larger canvases, framed in hefty wooden (golden) frames and priced probably double (than the 20x30 ones, that is).
You seem to be suggesting that the inkjet strategy might be wrong, if for no other reason, than for buyers scanning it and making their own larger prints, i.e., cannibalizing my larger pieces?
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You seem to be suggesting that the inkjet strategy might be wrong, if for no other reason, than for buyers scanning it and making their own larger prints, i.e., cannibalizing my larger pieces?
No, I'd never worry about the theft via a purchased print and scan. It's simply too small a risk to be concerned about. I do like selling inkjet prints at all sizes, paper and canvas.
I have had artists scan my prints that I made for them from my photographs of THEIR art for resale. They made copies at Costco for resale. Sure, it's a violation of my copyright, but other than not photographing and printing for them any longer, there's no way I'd bother with a complaint, civil or otherwise.
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There is nothing new under the sun. In essence, there are only the rich and the poor in any society. Of course, lots of the poor got led to believe they're in the middle.
Today's Wall Street Journal reports "The contemporary art is on fire."
http://online.wsj.com/news/articles/SB10001424052702304081804579560911179047616?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052702304081804579560911179047616.html
Here are some highlights:
The contemporary art market is on fire. Christie's in New York made auction history Tuesday when it sold $745 million worth of contemporary art in less time than it takes to watch a basketball game.
The auction house's total surpassed its $691.6 million landmark sale last November and reset records for artists like Alexander Calder and Barnett Newman, whose black-and-tan abstract, "Black Fire I," sold for $84.2 million.
(http://www.christies.com/sales/images/newman-cover.jpg)
Christie's total easily exceeded its own $500 million expectations, with collectors, fashion designers and dealers in chunky eyeglasses chasing nearly everything on offer—and whistling and shaking their heads in amazement on occasion.
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Among the usual roster of international collectors, mainland Chinese collectors bidding over the telephone stood out, taking home a gallery's worth of works.
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All night long, auction regulars like New York dealers Larry Gagosian and Dominique Levy found themselves competing with Asian telephone bidders for the sale's art trophies—with each taking spoils in turn.
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"You have to be disciplined and not reckless in this market," Mr. Cejas added, "but if you like something, you stretch for it. And this is the one I wanted."
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"The art market is hot across the board—Pop is selling, Ab-Ex is selling, New Wave is selling, it's all selling."