Luminous Landscape Forum
Equipment & Techniques => Pro Business Discussion => Topic started by: Slobodan Blagojevic on July 18, 2018, 11:07:23 am
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A friend of mine, an architectural photographer, asked recently an interesting question. Here is the situation (name changed, and bold mine):
I had a shoot earlier in the year for an interior design firm, the photos have since been published in a couple publications. One of the rooms contained a painting by an artist, he contacted me and asked for a high-resolution image for his uses on web/social media. I replied that I’d be happy to sell him the file and I offered it at a discounted rate for artists. He replied that he was quite offended that I asked him to pay for an image of his work, and that in fact, they did not have the right to reprint his work in the first place, saying “even if the painting has been sold, I continue to own the image rights. It’s clearly illegal for Maggie to use the image without my consent but in this situation I thought it was perhaps ignorance on her part and not malicious.”
Anyways, just wanted to see if any of you have had issues with this in the past. I’ve worked with a lot of artists and shot their work both in studio and installed on locations, and have always been paid for my work. I also thought that if a piece was purchased, and then later ended up in a photograph of a room, that was no problem. I’ve always been very particular when my clients have asked me to “Photoshop in” a piece of artwork, and I always make sure that they actually have the piece or own it before I will add it in.
Is it normal to give photos away to artists who end up in your clients work?? Because this guy says in 30 years he has never experienced this.
The photograph in question, done for the interior design firm, shows a dining room, with an approximately 30x30" oil paining on the wall in the background, representing approximately 1/8 of the area photographed, or less.
Several issues I see here:
1. The art is unique (oil painting). With reproducible art, like photographs, one can sell image usage rights, but retain copyrights. One can also sell both. With oil paintings, and other originals (e.g., statues), I would assume that, once sold, both belong to the new owner? Or not?
2. The concept of reproduction: one thing, in my mind, is to exactly reproduce the original as an ink-jet print and start selling it as such, and quite a different thing to reproduce the painting as incidental to the interior design firm's purpose (advertising, magazine publication, etc.) No?
3. Fair Use Doctrine. Does it apply in this case? I have in mind the oil painting in the photograph, as described above. I see several of the conditions met here: the photograph is transformative, as it is not a simple replica of the painting. The market value for the painting (or the artist's future work) is not affected. The area of the photograph occupied by the painting is relatively small, and the painting is not the main purpose of the photograph.
4. Should the artist get the photo for free? Let's assume the following scenario: the artist calls the photographer and says: "I heard that one of my paintings is in the Mr. XYZ' house and in a quite nice setting. I would love to be able to show this to my future clients. Would you be able to go there and take a professional picture of that?" In such a scenario, the photographer would rightly expect to be paid for the work, correct? So, what is different then in the above case?
An interesting case. Looking forward to your comments.
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A friend of mine, an architectural photographer, asked recently an interesting question. Here is the situation (name changed, and bold mine):
The photograph in question, done for the interior design firm, shows a dining room, with an approximately 30x30" oil paining on the wall in the background, representing approximately 1/8 of the area photographed, or less.
Several issues I see here:
1. The art is unique (oil painting). With reproducible art, like photographs, one can sell image usage rights, but retain copyrights. One can also sell both. With oil paintings, and other originals (e.g., statues), I would assume that, once sold, both belong to the new owner? Or not?
2. The concept of reproduction: one thing, in my mind, is to exactly reproduce the original as an ink-jet print and start selling it as such, and quite a different thing to reproduce the painting as incidental to the interior design firm's purpose (advertising, magazine publication, etc.) No?
3. Fair Use Doctrine. Does it apply in this case? I have in mind the oil painting in the photograph, as described above. I see several of the conditions met here: the photograph is transformative, as it is not a simple replica of the painting. The market value for the painting (or the artist's future work) is not affected. The area of the photograph occupied by the painting is relatively small, and the painting is not the main purpose of the photograph.
4. Should the artist get the photo for free? Let's assume the following scenario: the artist calls the photographer and says: "I heard that one of my painting is in the Mr. XYZ' house and in a quite nice setting. I would love to be able to show this to my future clients. Would you be able to go there and take a professional picture of that?" In such a scenario, the photographer would rightly expect to be paid for the work, correct? So, what is different then in the above case?
An interesting case. Looking forward to your comments.
I've no idea how USA law differs from UK law or common sense but:-
1. I think your assumption is incorrect. Unless the image usage rights and or copyrights are transferred to the new owner and confirmed in writing then I would assume both remain with the artist.
2. I think your assumption here is correct.
3. I think your assumption here is correct.
4. I think your assumption here is correct.
IMO
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I think that this provides some good guidance, but interested to see if you get more authoritative responses:
https://www.artsy.net/article/artsy-editorial-art-copyright-explained
Essentially, this supports KLaban's comments above.
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I do interior/architectural photography and am not a lawyer. My understanding is that, if a work subject to copyright is clearly the subject of the photo, then there is a copyright issue vis a vis that work. If it is simply one element among many and is clearly not the subject, then this is not an issue. It would seem to me that what is described above is an example of the latter, in which case the photographer in question would seem to be within his rights to charge the artist for usage his work, which itself is subject to copyright.
I ;lam peaking about broad usage of the photo, which could include commercial usage. It seems to me that for purposes of creating a derivative work as a work of art, the appropriated work subject to copyright can be the dominant visual element in the shot, as long as the artist using the work does enough with that work to create something new. An example of this would be what Joseph Prince does. I am not sure of the legalities in that case, but it is my guess that Prince could not license usage of his work for commercial purposes without the permission of the creators of the copyrighted material he has appropriated for use in his art works.
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Also not a lawyer, but my common understanding would align with Keith, Phil and David.
THAT SAID... whenever I'm looking at something on television, say HGTV where they are showing properties, original works of art are always blurred out. I assume there's a reason for that, but I'm not sure what conclusions I can draw as to why, except that their legal team probably exceeds me in the application of the law :)
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Also not a lawyer, but my common understanding would align with Keith, Phil and David.
THAT SAID... whenever I'm looking at something on television, say HGTV where they are showing properties, original works of art are always blurred out. I assume there's a reason for that, but I'm not sure what conclusions I can draw as to why, except that their legal team probably exceeds me in the application of the law :)
There could be a number of reasons for this. Identifiable portraiture, works identifiable to owner, works identifiable to location, erotica, valuable works, producers covering their arses... I have collections of objects and artefacts that I wouldn't want featured on television and wouldn't be keen on my car registration plate being shown.
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There could be a number of reasons for this. Identifiable portraiture, works identifiable to owner, works identifiable to location, erotica, valuable works, producers covering their arses... I have collections of objects and artefacts that I wouldn't want featured on television and wouldn't be keen on my car registration plate being shown.
Absolutely there could be. Not suggesting otherwise, just adding a data point :)
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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.
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Also not a lawyer, but my common understanding would align with Keith, Phil and David.
THAT SAID... whenever I'm looking at something on television, say HGTV where they are showing properties, original works of art are always blurred out. I assume there's a reason for that, but I'm not sure what conclusions I can draw as to why, except that their legal team probably exceeds me in the application of the law :)
Given the timelines those shows are produced on, the most likely reason is that it’s quicker than tracking down the copyright holder and clearing the art. Of course, it’s cheaper and well.
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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.
I think to arrive at any meaningful opinion or judgement here we'd need to see the image.
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I think to arrive at any meaningful opinion or judgement here we'd need to see the image.
Agreed. But what would an Internet forum be without speculation? ;-)
Sent from my iPhone using Tapatalk
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I think to arrive at any meaningful opinion or judgement here we'd need to see the image.
This is the photograph in question:
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I would say in this situation, the artist could in fact sue (really, anyone can sue anyone over anything), but I doubt he would get much further then an initial hearing. The painting in question is roughly a 1/10, or less, of the overall image and is also obscured by the objects on the table. It is clearly an element on an overall image, not the sole focus of the image.
If the painting took up more then half the image, I would say your friend has a serious issue.
Now, regardless of this though, if your friend was sued, depending on the court and/or lawyer she hires, the case might actually be heard, which would cost money of course. Bare in mind too, for this to work, the artist in question would also have had to have registered this work with the Copyright Office, which only 2% of artist actually do, for any lawyer to take up the case. (Remember, without registering the work, the artist could only sue for usage fees of the image being used in publication, which would not cover the cost of a federal lawsuit.). So, if we were to play the odds, he's all bark and no bite.
(This is why you should register your work with the Copyright Office! Get your $125K per infringement.)
If this were me, I probably would have just let the artist use the image to avoid any ill will and create a referral engine. He clearly works and networks with designers, so he could be a good source of future business. Plus this image is not really worth anything to the artist. His work is not shown in the best fashion for him and no one is going to make a purchasing decision for another painting of his off of this image, especially if he is charging appropriately for his work.
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Opps...that should have read With that photograph in mind I'd say there would be NO grounds for a claim by the artist for breach of copyright.
Apologies.
:-[ :-[ :-[
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Unlike photographs which can be "perfectly" reproduced I am wondering does a painter retain copyright to the work or is that transferred to a buyer once it is sold. Did Andy Warhol, Jasper Johns or any painter for that matter have say over the sale of their works after they were sold? It is my understanding that the subsequent sale of a painting (or any piece of art) that has increased in value does not require any of the proceeds be paid to the original artist.
Paintings in a gallery which are usually being represented for sale by the Gallery owner would be a different case. The paintings have not yet been sold.
Jim
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Unlike photographs which can be "perfectly" reproduced I am wondering does a painter retain copyright to the work or is that transferred to a buyer once it is sold. Did Andy Warhol, Jasper Johns or any painter for that matter have say over the sale of their works after they were sold? It is my understanding that the subsequent sale of a painting (or any piece of art) that has increased in value does not require any of the proceeds be paid to the original artist.
Paintings in a gallery which are usually being represented for sale by the Gallery owner would be a different case. The paintings have not yet been sold.
Jim
Well, I can tell you as I have never relinquished copyright on my paintings - copyright remains with the artist - that I retain the copyright on all I've ever sold. The originals are however the property of the buyer and I can have no subsequent say or profit from their resale. They cannot however reproduce the artwork for further sale.
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"Well, I can tell you as I have never relinquished copyright on my paintings - copyright remains with the artist - that I retain the copyright on all I've ever sold. The originals are however the property of the buyer and I can have no subsequent say or profit from their resale. They cannot however reproduce the artwork for further sale."
Thanks for the clarification
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Well, I can tell you as I have never relinquished copyright on my paintings - copyright remains with the artist - that I retain the copyright on all I've ever sold. The originals are however the property of the buyer and I can have no subsequent say or profit from their resale. They cannot however reproduce the artwork for further sale.
https://www.gov.uk/guidance/artists-resale-right
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https://www.gov.uk/guidance/artists-resale-right
Thanks.
Any painting resale I've been aware of has been a private sale.
I regularly receive DACS payments - yearly - on my published work.
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If this were me, I probably would have just let the artist use the image to avoid any ill will and create a referral engine. He clearly works and networks with designers, so he could be a good source of future business. Plus this image is not really worth anything to the artist. His work is not shown in the best fashion for him and no one is going to make a purchasing decision for another painting of his off of this image, especially if he is charging appropriately for his work.
I'm with Joe on this. The usage rights are at best muddy, and assuming that the designer has already paid for the work, here's an opportuynity to clear the painting and make a friend, all at the cost of a print. Limit the rights to given to the artist, and it all seems like a very win/win resolution of the issue.
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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).
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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
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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.
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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.
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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.
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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
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Thanks, BAB!
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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.
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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.
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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).
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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.
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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.
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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.