Question for Copyright Experts and Architectural Photographers

[LesPalenik]

Stock photography industry has a clear and simple rule about these type of images:
 
If a photographer wants to submit such a photo, he must provide a signed property release from the original painter or he can replace the picture in the frame with one of his own images (accompanied by his own property release).

[digitaldog]

An interesting case. Looking forward to your comments.

My comment is this is exactly why the ASMP and APA have existed for a very long time and that your friend should contact one or the other, consider becoming a member and getting advise from their lawyers.
https://www.asmp.org
https://apanational.org

[David Eichler]

Stock photography industry has a clear and simple rule about these type of images:
 
If a photographer wants to submit such a photo, he must provide a signed property release from the original painter or he can replace the picture in the frame with one of his own images (accompanied by his own property release).

If an artist has sold their physical work to someone else, they no longer own the work itself and so cannot grant a property release. They may, however, retain copyright to the work, unless they have transferred that to some other party. A property release has no bearing upon copyright. In any case, if you feel the need for a property release, it should address all of the property owner's property that appears in the photo. Also, stock photography companies do not necessarily always require a property release for photos of private property. Some only require one for photos that can be licensed for commercial usage, as opposed to editorial usage.

[BobDavid]

I wouldn't worry about "rights issues" regarding the photo with the painting in it. ... Unless the artist is a millionaire with money to burn, he/she is not going to sue.

The fair market value of the painting is probably less than what it'd cost to sue. If the painting is < $5K (or so), the dispute is adjudicated in small claims court. I doubt the artist has the time/inclination to bother with that.

It's obvious that the intent of the photograph is to show an interior space, not to reproduce a painting.

[David Eichler]

I’m not a lawyer, but have run into some relevant issues in my work...

Because US law vests copyright with the creator of a work upon its creation, the answer to any copyright question depends on the terms of the contract signed (or not) when a work is sold.

A client of mine—a lighting company—did a photo shoot of an art gallery that features some of their lighting. The photographer (not me) secured location and talent releases, and assumed that the gallery’s location release covered the art in the photos, since the lighting of the artwork was the subject of the ad they were making. After the ad ran, the artist, whose work was not cleared, won a 5-figure (plus legal fees) settlement from my client because the gallery’s agreement with the artist included no rights that were applicable to the use in an ad for a third party.

Another interesting copyright case that’s still in the courts relates to tattoo designs. The artist who did several of Lebron James’ tattoos is suing 2K Games for copyright infringement. (There are other high-profile tattoo art lawsuits as well.) The issue there seems to be using the tattoo designs to create a character in a video game based on Lebron James.

I think the issue with your friend’s case is that the photography is for promotion of the interior designer, and the artwork is a significant part of the interior design, so fair use is questionable, and without a transfer of copyright, the owner of the painting may not have the right to offer it up for other (especially commercial) uses.

Could you let us know the names of the plaintiff and defendant in the case you cited? I would like to read the decision in that case, which should be available to the public.

[BAB]

This will unquestionably tell you the answer. It was quite a learning experience for me!
http://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_photography.pdf

[Slobodan Blagojevic]

Thanks, BAB!

[Daniel_Jackson]

I am an artist and an architectural photographer who has had paintings reproduced in magazines and I haven't ever been asked for a property release. I think the important distinction is that the painting is a part of a creative composition made by the photographer. Even in architecture the architect retains the copyright for their design, however since architecture is 3d it is impossible to reproduce without making artistic decisions of your own. Obviously, if you photograph a painting and crop at the edges you haven't added anything so to materially benefit would be wrong.

Some artists are just crazy, when I have a designer that likes to buy and place my work in their designs I am absolutely thrilled. It puts more eyeballs on my artwork. I can't think of a downside because a nice photo in a magazine or book doesn't compete with me in any way. If the person buying the interior photo decides they must have one of my paintings, they will still look me up and buy a painting.

[JoeKitchen]

I am an artist and an architectural photographer who has had paintings reproduced in magazines and I haven't ever been asked for a property release. I think the important distinction is that the painting is a part of a creative composition made by the photographer. Even in architecture the architect retains the copyright for their design, however since architecture is 3d it is impossible to reproduce without making artistic decisions of your own. Obviously, if you photograph a painting and crop at the edges you haven't added anything so to materially benefit would be wrong.

Some artists are just crazy, when I have a designer that likes to buy and place my work in their designs I am absolutely thrilled. It puts more eyeballs on my artwork. I can't think of a downside because a nice photo in a magazine or book doesn't compete with me in any way. If the person buying the interior photo decides they must have one of my paintings, they will still look me up and buy a painting.

Just to clarify this a little further, architects own the copyright of their drawings/plans for the building they designed, but not the actual building.  Buildings are an utility and therefore can not be copyrighted (in the USA at least).  This is why architectural photography is not considered a violation of the architect's copyright, even though images of other 3-d works (such as statues) can be a violation of copyright. 

[JoeKitchen]

Could you let us know the names of the plaintiff and defendant in the case you cited? I would like to read the decision in that case, which should be available to the public.

I too would be interested in seeing this case, along with the images in questions. 

I seriously doubt that overall room shots or an exterior at dusk would be ruled a copyright violation, unless the judge was less then competent on this part of the law (such as was the case with the recent ruling in DC concerning that travel company). 

[D Fuller]

Could you let us know the names of the plaintiff and defendant in the case you cited? I would like to read the decision in that case, which should be available to the public.

One of the defendants would have been Sylvania lighting. They were my client (some time after this occurred). The photographer was almost certain to have been a co-defendant; I don't know who that was. I don't know the name of the plaintiff.

[David Eichler]

One of the defendants would have been Sylvania lighting. They were my client (some time after this occurred). The photographer was almost certain to have been a co-defendant; I don't know who that was. I don't know the name of the plaintiff.

A Web search yields nothing, so I am guessing this was settled out of court. If that is the case, no legal precedent has been set.

[D Fuller]

A Web search yields nothing, so I am guessing this was settled out of court. If that is the case, no legal precedent has been set.

That seems likely. It’s seldom less expensive to take a cast court than to settle.