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.
