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Author Topic: Photographing at Art Fairs  (Read 21487 times)

Jeremy Roussak

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Re: Photographing at Art Fairs
« Reply #40 on: May 03, 2014, 01:34:33 pm »

Equivocation often results in misunderstanding.

Equivocation often arises from misunderstanding.

Jeremy
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Isaac

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Re: Photographing at Art Fairs
« Reply #41 on: May 03, 2014, 05:23:59 pm »

Can you be (legally) guilty before a court has found you guilty?

Of course you can.

No.

… whether you are or are not guilty depends on the facts, which exist before the matter comes before a court.

"[W]hether you are or are not [factually] guilty depends on the facts"; whether you are or are not "(legally) guilty" depends on a court saying you are or are not guilty.

Factual Guilt vs. Legal Guilt
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Schewe

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Re: Photographing at Art Fairs
« Reply #42 on: May 04, 2014, 01:59:39 am »

The 3rd paragraph states that the photographer is Antoine Rose.

Yeah, but, ya know...I've seen a lot of Richard Misrach's work and the image sure looks like a rip off...just sayin'

So, there ya go...was Antoine Rose copying Richard Misrach's work? Sure looks like it...is that "fair use" or a copyright infringement? Maybe it's fair use?

None of this stuff is written in stone...it's always open to interpretation–except for the fact that "people" are free to make use of fair use–which implies that the act of photographing a copyrighted work is not, in itself, a de facto infringement. Right?
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Jeremy Roussak

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Re: Photographing at Art Fairs
« Reply #43 on: May 04, 2014, 03:57:32 am »

"[W]hether you are or are not [factually] guilty depends on the facts"; whether you are or are not "(legally) guilty" depends on a court saying you are or are not guilty.

Factual Guilt vs. Legal Guilt

He's writing drivel. It's the kind of pointless mental gymnastics1 those of us who have, on occasion, had to defend people we "knew" were guilty have indulged in from time to time, to sate our conscience's desire for peace. He's confusing fact with presumption and creating an artificial distinction which is baseless.

Jeremy

1 I almost used the ma...bation word there instead of "gymnastics". It would have been valid, and the nicely alliterative term is one of widespread application, which I rather like.
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Isaac

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Re: Photographing at Art Fairs
« Reply #44 on: May 04, 2014, 11:25:35 am »

He's confusing fact with presumption and creating an artificial distinction which is baseless.

No. The doctrine of legal guilt is basic to the US legal system.

Quote
pdf "doctrine of legal guilt -- The principle that people are not to be held guilty of crimes merely on a showing, based on reliable evidence, that in all probability they did in fact do what they are accused of doing. Legal guilt results only when factual guilt is determined in a procedurally regular fashion, as in a criminal trial, and when the procedural rules designed to protect suspects and defendants and to safeguard the integrity of the process are employed."

page 18 Introduction to Criminal Justice
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Slobodan Blagojevic

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Re: Photographing at Art Fairs
« Reply #45 on: May 04, 2014, 12:53:13 pm »

I never thought I would actually say this, but I agree with Isaac on this one  ;D

Isaac

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Re: Photographing at Art Fairs
« Reply #46 on: May 04, 2014, 01:48:02 pm »

I'm not a lawyer and the following comments do not constitute legal advice.

The author, a painter, made several claims that I find dubious from a legal perspective…

afaict That painter wants a way to prevent copyright infringement taking place, but that is not what copyright law provides. Copyright law provides a way to compensate the copyright owner for an infringement that did take place, and impose penalties severe enough to deter future infringements.

Even if you do take a photograph that as a matter of fact does infringe copyright; unless that photograph is made available to the copyright owner, and their attorney, and a court…
« Last Edit: May 04, 2014, 02:14:19 pm by Isaac »
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Slobodan Blagojevic

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Re: Photographing at Art Fairs
« Reply #47 on: May 04, 2014, 02:09:51 pm »

Right again, Isaac.

In that respect, the painter's intention reminds me of the movie Minority Report, with Tom Cruise. For those not familiar with it, it is a sci-fi movie where people with psychic powers to envision future are used by a special police unit, called PreCrime, which then prevents crime from happening. Alternatively, such intention has also been known, outside of the science fiction realm, as "preemptive strike," and mostly considered illegal.

Isaac

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Re: Photographing at Art Fairs
« Reply #48 on: May 04, 2014, 02:33:03 pm »

Yeah, ya know, the author of the article seems to have used a Richard Misrach image (sure looks like his work) as the lead illustration to his article. So, is that Fair Use? Hum...

So, there ya go...was Antoine Rose copying Richard Misrach's work?

If you actually read that blog post, you'd find that it covers the points you're trying to make ;-)


Meanwhile, here's the Richard Misrach photo that's most like Antoine Rose's photos. (From Richard Misrach: On the Beach Part I.)

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Slobodan Blagojevic

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Re: Photographing at Art Fairs
« Reply #49 on: May 04, 2014, 03:14:55 pm »

It might be worth noting at this point that ideas and concepts are not copyrightable. So, the idea to shoot beaches from above can not be copyrighted. The exception would be if someone went to such an extreme trouble to recreate the exact beach scene as in, say Misrach' photo (which would not be too difficult, granted, given its relative simplicity).

Jeremy Roussak

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Re: Photographing at Art Fairs
« Reply #50 on: May 05, 2014, 03:52:41 am »

I never thought I would actually say this, but I agree with Isaac on this one  ;D

Sadly, that's no more a good idea when he quotes selectively from a student textbook than at any other time. Read the surrounding context, and then move away from the sophistry.

Jeremy
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fotagf8

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Re: Photographing at Art Fairs
« Reply #51 on: May 05, 2014, 12:43:48 pm »

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.
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Isaac

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Re: Photographing at Art Fairs
« Reply #52 on: May 05, 2014, 12:55:32 pm »

If you have legal questions, retain a lawyer.

Thank you for that demonstration of why, if we have legal questions, we should retain a lawyer :-)
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Isaac

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Re: Photographing at Art Fairs
« Reply #53 on: May 05, 2014, 01:06:26 pm »

He's writing drivel.
...he quotes selectively ...move away from the sophistry.

We can see that you believe you are correct but you haven't even tried to show why.
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Slobodan Blagojevic

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Re: Photographing at Art Fairs
« Reply #54 on: May 05, 2014, 01:21:05 pm »

... the search for an answer assumes there is certainty in the law.  There isn’t.  Here is how I would approach the problem:..

Thank you for the comprehensive answer. I agree about the certainty. If there is such thing in the law, we would not need two lawyers in every court case. Just one might suffice. Or none, a judge might be enough.  :)

Just to make it clear. I am not personally involved in the OP case, other than participating in a debate about it in a web forum. It was just an intellectual curiosity in asking for a legal point of view, as certain things are more certain than others, even in the law. Another point being that the painter in question made it sound way more certain (in favor of his point of view) than I believe is warranted.

As for me, I rarely have the urge to photograph other people work, let alone use it or misuse it, and I was often surprised to see a no-photgraphy sign in art fairs (until recently, that is), as I could not figure out why. Perhaps because I know how difficult it actually is to photograph a painting properly, and that a casual snap can not possibly result in anything seriously reproducible.

When I did want to take a picture of something, it was mostly to serve as a visual note or remainder for something to check out later. In which case I would ask for permission and move on if not given.

Before my own first art fair, I visited a couple of nearby art fairs with the explicit purpose of figuring out what kind of tent I need, and other minor issues, like tent weights, director stools, etc. And I snapped a number of pictures of various tents, weights, etc. with the idea to check it out later on the web for manufacturers, prices, etc.

Having said all that, I would be very, very pissed off in someone confronted me in any but most polite way or demanded to surrender my camera, memory card, or delete my pictures. As another forum member mentioned, a photographer approached in that way by an artist actually called the police and accused the artist of assault. Probably something I would do as well.

fotagf8

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Re: Photographing at Art Fairs
« Reply #55 on: May 05, 2014, 01:53:50 pm »

As I watched this thread develop over the weekend, the assault issue came to mind.  I agree.  Even assuming the artist can legally rely on his sign, there is the issue of just how physical he can get before crossing the assault line.  A similar issue exists when you are the on street and someone tries to steal your camera.  How much force an use in your response?

While there are obviously clear answers to many legal issues (your lawyer will tell you that you cannot murder someone you don't like), in many areas that matter to photographers (fair use, publicity and privacy rights, e.g.) there is a lot that depends on the particular facts and circumstances, and even then, the underlying law is often unclear.  The correct answer  or response is to fashion an approach that reduces risk to a level that is acceptable to the particular photographer, which is why discussions on Internet photography forums are fun, but usually fruitless.  People are looking for or believe they have a clear answer.  There often isn't one.
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Slobodan Blagojevic

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Re: Photographing at Art Fairs
« Reply #56 on: May 05, 2014, 02:15:51 pm »

... 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....

In fairness to the artist in question, the conspiracy claim stems from stories about sweatshops in Asia engaged in churning out copies of work obtained from "photographers" visiting art fairs here.

Jeremy Roussak

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Re: Photographing at Art Fairs
« Reply #57 on: May 05, 2014, 03:18:46 pm »

We can see that you believe you are correct but you haven't even tried to show why.

I have. You aren't sufficiently important, Isaac, and I don't care enough whether you believe me or not, for me to waste any more time on the point.

Jeremy
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Isaac

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Re: Photographing at Art Fairs
« Reply #58 on: May 05, 2014, 05:58:12 pm »

You aren't sufficiently important, Isaac, and I don't care enough whether you believe me or not, for me to waste any more time on the point.

I'll bear that in mind.
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BobShaw

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Re: Photographing at Art Fairs
« Reply #59 on: May 06, 2014, 03:39:39 am »

I haven't read the first three pages of this, but why would anyone take a photograph of anything, if they did not intend to use it.
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