Freedom of Panorama

[Colorado David]

Back to the topic. There are two sides of this issue in which photographers have an interest. First we don't want to do anything to weaken copyright law. In the USA there is a movement to weaken copyright law to allow non-creators the right to benefit from the work of creators. We must protect our protections if we hope to be able to earn a living from our craft. The second issue is that we have to be able to take photographs if we are photographers hoping to earn a living. There is a well-known statue/sculpture here by a now dead Native American artist. The sculpture is copyrighted and his estate owns that copyright for many years. It is frequently photographed. It has been determined that a photograph that includes the sculpture as part of a larger composition is legal and the photographer can sell prints and license images. However, if the photograph is ONLY of the sculpture then that is a violation of his copyright and cannot be sold. I was once told by an attorney that I could create a product and call it Lifesaver as long as it wasn't a round candy with a hole in the middle. I don't know how true that is today in our litigious society and I'm not suggesting anyone take that as legal advice. But copyright and trademark law exists to protect something you have created and from which you should be able to benefit. With that said if I take a photograph of a skyline, I should have the legal right to benefit from my work. However if I take a photograph of a building in order to build a similar building, that would cross the line and be a violation of the creator's copyright.

[Slobodan Blagojevic]

... However if I take a photograph of a building in order to build a similar building, that would cross the line and be a violation of the creator's copyright.

Well, I think that a copyright protection for a building is meant to prevent someone else constructing a similar building, not to prevent taking a photo of it. However, if the photo where the copyrighted building is the main and dominant subject is meant for commercial use (say advertisement), I believe the architect should have the right to enjoy the fruits of his labor. Similar to your sculpture example. Now, in the U.S., there is usually a narrower definition of "commercial use" as advertisement. Which would mean one can sell a picture of a building in a gallery, art fair or online. Then again, I am not a lawyer.

[Rob C]

But it doesn't matter, Slobodan; knowing the law isn't what it's about: what it's about is winning legal games. Were it a straight case of yes or no, a lawyer would tell you before you take any expensive steps whether or not you had a snowball's chance of success. It's a game of mutual aid: for the legal profession, in my opinion. Both side's lawyers do well; only one client side comes out on top.

I hired a lawyer once: cost me a packet and I lost an advertising agency client as consequence. No, it wasn't complex: it was about the difference between being or not being the principal contractor, and who can hire whom on whose say-so. Had my legal guy explained that I was wrong, I wouldn't have gone any further. I didn't even suspect those differences existed: I thought everyone on a job was working to the same end. Innocence of youth. And then I get slammed for a slight cynicism...

Sheesh.

Rob C

[Ray]

I give up, Ray. The bearded guy on the right looks just like me, but I don't remember being at that dinner. So you must be one of the others.

Eric

     I'm glad I don't always look like that. Just posing for the camera of course. 

[Ray]

In a self-reported dietary database of 500K people I have access to, the largest proportion of people reporting insufficient caloric intake to support life are the most obese.

That's extraordinary, and is certainly a classic example of self-delusion. From my own conversations with overweight people, I get the impression they are often in denial about the fundamental principle that one cannot become overweight without eating too much. They tend to believe that they are overweight simply because of their genes. They can't seem to grasp the point that the body naturally produces fat from surplus food which is not needed to sustain their normal activities.

But I guess this is getting a bit off-topic. But never mind, it is the Coffee Corner after all. 

[Rob C]

That's extraordinary, and is certainly a classic example of self-delusion. From my own conversations with overweight people, I get the impression they are often in denial about the fundamental principle that one cannot become overweight without eating too much. They tend to believe that they are overweight simply because of their genes. They can't seem to grasp the point that the body naturally produces fat from surplus food which is not needed to sustain their normal activities.

But I guess this is getting a bit off-topic. But never mind, it is the Coffee Corner after all. 

And to avoid a similar fate, refuse the biscuits!

Rob

[GrahamBy]

And to avoid a similar fate, refuse the biscuits!

Exactly In fact one of the investigators (it's huge thing spread over nine centres across Europe) did an analysis which showed that self-reported consumption of cookies and cake was protective against diabetes in over-weight women. That didn't make him very popular with the steering committee.

Men were different of course: for them it was beer 

[GrahamBy]

Well, I think that a copyright protection for a building is meant to prevent someone else constructing a similar building, not to prevent taking a photo of it.

One would think so. I guess that means the image rights for the lighting on the Eiffel Tower are to prevent someone else lighting their own Eiffel Tower in the same way 

[hjulenissen]

Nice to see from the map that my country is in the same cathegory as the freedom-loving USA (and Russia).

From a pragmatic standpoint, how do you separate the cases of:
1) Someone taking holliday snaps while in Manhattan, publishing them on Facebook (should clearly be legal)
2) Someone doing a photographic reproduction of a painting, selling copies on Ebay (should probably be illegal)

Where I live, you can (with some restrictions) buy and fly a drone, but you cannot sell the images that you produced. So what if I capture the image of a lifetime while doing recreational flying in a small drone?

-h

[Ray]

And to avoid a similar fate, refuse the biscuits!

Rob

Actually, I rarely eat biscuits, Rob, and I watch my diet carefully. For a number of years I was aware that I was overweight but didn't consider it a problem because I was quite healthy and did a reasonable amount of exercise, including some trekking in Nepal occasionally which had the effect of temporarily reducing my weight.

Then one day I came across the concept of the BMI calculator which consists of dividing one's body mass in Kg by the square of one's height in metres, and discovered that I was 'officially' about 20kg overweight, which surprised me. I had imagined that I was about 10kgs overweight.

20 kg is about the weight of my suitcase when I travel overseas. The thought that I was carrying that unnecessary weight, although spread fairly evenly over my body, with every step that I took, all day long and every day, seemed ridiculous. I felt I had to do something about it, and I did.

After I'd reduced my weight to within what is considered to be a normal and healthy range, I decided to test myself by trekking a particular route in Nepal which I'd previously avoided because it involves crossing a pass which is 5,400 metres high (the 'Thorong La' pass). Many people don't make it and turn back. Some people, usually the ladies, hire a horse to take them over the pass. Sometimes an obdurate male presses on, even though he's not up to the task, and dies.

I was rather pleased that I crossed the pass with little difficulty, at the age of 71. I think I would have had great difficulty if I had been carrying a 20kg load of excess fat. 

However, it's a rather desolate place up there at 5,400 metres, as the attached photo shows. I wonder if I should introduce a couple of nude kathoeys into the scene to give it more zest. 

[Rob C]

Not any sort of a doc, so take this idea with more than a soupçon of salt, but if you made 71 without heart hitches, then I'd hope you're fairly safe from associated problems. Mine came bundled with my UK pension... but that's so long ago I'm hardly able to remember much about the details beyond the surprising state of calmness that I do remember.

Walking to the chemist today to pick up part of my prescription (they never come together and give me a month at a time, despite the Beatles), my mind wandered to school days and chemical arithmetic and I thought: does one beta blocker equate with and cancel out one Viagra? I forgot to ask the chemist, so throw it out here to a wider team of experts... not that I've any pressing use for Viagra, of course.

Rob C

[Ray]

From a pragmatic standpoint, how do you separate the cases of:
1) Someone taking holliday snaps while in Manhattan, publishing them on Facebook (should clearly be legal)
2) Someone doing a photographic reproduction of a painting, selling copies on Ebay (should probably be illegal)

As I understand, it's quite straightforward that a copyright period should apply to all works of art (paintings, photographs, literature, music, sculpture etc), and after that copyright period has expired, which is usually 50 or 70 years after the death of the creator, one is free to sell copies of the work.
This is why we can have that wonderful site, Project Gutenberg, which makes available all the great works of literature throughout history, for free.

However, there seems to be a problem with regard to works of art which are still under copyright but are displayed in a public place, such as a painting adorning a wall, or a sculpture set in a park or a city square.

It seems, as I understand it, that to photograph and sell an exact copy of such painting or sculpture, when the painting or sculpture is clearly the main focus of interest rather than part of an interesting background, is illegal.

However, here is where things can get silly. Who determines what is the main focus of interest? If I crop off the surrounding background from a photo of a painting on a wall in a public place, so that only the painting is shown and nothing else, then it's quite obvious that the painting is the main focus of interest.

But suppose there happened to be a large butterfly that settled on a part of the painting, perhaps on the nose of a person depicted in the painting, then presumably I could sell my photo of the painting. But not necessarily.

Perhaps the painter who had the copyright could take me to court on the grounds that the presence of the butterfly was incidental, and that his painting was still the main focus of interest. We are then into the realm of pure opinion, existing only in the mind of the beholder. I could counter by claiming that I would never have bothered photographing the painting if the butterfly had not landed on it, and that the butterfly was much more beautiful than his painting...and so on.

Likewise, the same situation could apply to a sculpture in a botanical garden; even more so because a sculpture is a 3-dimensional structure and always has a visible background when presented within a rectangular frame, unless such background is rendered completely out of focus.

There could be a play of light and shadow creating an interesting pattern. The photographer who took the photo of the sculpture could claim that he would never have bothered taking the shot had it not been for the unusual lighting which made the shot interesting. The lighting was the main focus of interest and the sculpture was merely the background on which the lighting effects were displayed... and so on. 

[TomFrerichs]

Likewise, the same situation could apply to a sculpture in a botanical garden; even more so because a sculpture is a 3-dimensional structure and always has a visible background when presented within a rectangular frame, unless such background is rendered completely out of focus.

There could be a play of light and shadow creating an interesting pattern. The photographer who took the photo of the sculpture could claim that he would never have bothered taking the shot had it not been for the unusual lighting which made the shot interesting. The lighting was the main focus of interest and the sculpture was merely the background on which the lighting effects were displayed... and so on. 

It cost he United States Postal Service $540,000 to learn that your hypothetical photographer's "main focus" argument wouldn't be met with much success.  Although, to be fair, it was probably the snow on the sculpture and not lighting that drew the photographer's interest.

https://www.washingtonpost.com/news/federal-eye/wp/2015/02/10/court-upholds-540000-judgement-against-usps-for-korean-war-stamp/

tom

[Ray]

It cost he United States Postal Service $540,000 to learn that your hypothetical photographer's "main focus" argument wouldn't be met with much success.  Although, to be fair, it was probably the snow on the sculpture and not lighting that drew the photographer's interest.

https://www.washingtonpost.com/news/federal-eye/wp/2015/02/10/court-upholds-540000-judgement-against-usps-for-korean-war-stamp/

tom

Interesting case, Tom, but there's no mention in the article that the photographer was sued. The article does mention that there is only one nationally recognized Korean War Memorial, which includes these sculptures as a main feature, and the postage stamp itself even has the title printed at the bottom, "Korean War Veterans Memorial". Also there is no doubt that the stamp was issued to commemorate the 50th anniversary of the end of the Korean War, so it would be difficult (and even ludicrous) for the US Postal Service to claim that the statues depicting a squad of soldiers on patrol were not the main focus of interest.

However, lets imagine that this war memorial is situated further south than Washington DC and that the statues had never been subjected to snow before. Let's suppose that the purpose of the stamp was to bring to the attention of the public the dangers of climate change. Instead of the title, "Korean War Veterans Memorial', the title on the stamp might have been, "The Hazards of Climate Change".

I think then the court ruling would have been different and Frank Gaylord would not have had a case, even though the image of his sculptures was the same.