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.
