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Author Topic: Question for Copyright Experts and Architectural Photographers  (Read 4628 times)

Slobodan Blagojevic

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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):

Quote
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 Iíd 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 ďeven if the painting has been sold, I continue to own the image rights. Itís 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.Ē

Anyways, just wanted to see if any of you have had issues with this in the past. Iíve 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. Iíve always been very particular when my clients have asked me to ďPhotoshop inĒ 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.
« Last Edit: July 18, 2018, 02:51:52 pm by Slobodan Blagojevic »
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KLaban

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #1 on: July 18, 2018, 02:44:13 pm »

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
« Last Edit: July 18, 2018, 02:48:43 pm by KLaban »
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Farmer

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #2 on: July 18, 2018, 03:31:10 pm »

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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Phil Brown

David Eichler

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #3 on: July 20, 2018, 02:31:25 pm »

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.
« Last Edit: July 21, 2018, 09:50:02 pm by David Eichler »
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James Clark

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #4 on: July 23, 2018, 04:05:05 pm »

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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KLaban

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #5 on: July 23, 2018, 04:35:13 pm »

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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James Clark

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #6 on: July 23, 2018, 05:20:42 pm »

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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D Fuller

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #7 on: July 23, 2018, 09:22:53 pm »

Iím 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 mineóa lighting companyódid 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 galleryís 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 galleryís agreement with the artist included no rights that were applicable to the use in an ad for a third party.

Another interesting copyright case thatís still in the courts relates to tattoo designs. The artist who did several of Lebron Jamesí 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 friendís 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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D Fuller

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #8 on: July 23, 2018, 09:25:11 pm »

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 itís quicker than tracking down the copyright holder and clearing the art. Of course, itís cheaper and well.
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KLaban

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #9 on: July 24, 2018, 07:21:58 am »

Iím 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 mineóa lighting companyódid 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 galleryís 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 galleryís agreement with the artist included no rights that were applicable to the use in an ad for a third party.

Another interesting copyright case thatís still in the courts relates to tattoo designs. The artist who did several of Lebron Jamesí 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 friendís 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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david.fuller.3576

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #10 on: July 24, 2018, 10:31:29 am »

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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Slobodan Blagojevic

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #11 on: July 24, 2018, 11:57:04 am »

I think to arrive at any meaningful opinion or judgement here we'd need to see the image.

This is the photograph in question:

JoeKitchen

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #12 on: July 24, 2018, 01:43:55 pm »

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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KLaban

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #13 on: July 24, 2018, 01:58:15 pm »

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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Jim Metzger

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #14 on: July 31, 2018, 11:03:38 am »

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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KLaban

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #15 on: July 31, 2018, 11:13:56 am »

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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Jim Metzger

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #16 on: July 31, 2018, 11:19:38 am »

"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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elliot_n

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #17 on: July 31, 2018, 11:29:11 am »

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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KLaban

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #18 on: July 31, 2018, 12:37:26 pm »

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.
« Last Edit: July 31, 2018, 12:42:57 pm by KLaban »
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D Fuller

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Re: Question for Copyright Experts and Architectural Photographers
« Reply #19 on: July 31, 2018, 06:26:48 pm »


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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