Photographing at Art Fairs

[Slobodan Blagojevic]

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.

Not sure what you are referring to, but the issue is not really the "use" itself, but the misuse for copyright infringement, especially the kind that affects copyright owner's income. There are many uses, notably the fair use concept, that are legitimate, and then there are uses that might be infringement technically but are innocent in nature or even beneficial to artists or shows (for instance, when publishing photos of artworks to social media provides free publicity and attracts larger crowds to the show or artists).

As for the general part of your question, why we shoot anything, it shall be noted that most photographers have "twitchy" fingers and shoot things instinctively, whenever they see something interesting (kind of "shoot first, ask questions later"). That we may never use it, might be hard to believe, but is easy to prove. For instance:

Though he [Garry Winogrand] shot more than a whopping 25,000 rolls of film in his lifetime, he often delayed in developing and proofing them. At the time of his death, approximately 2,500 rolls of undeveloped film were found, as well as 6,500 rolls of developed but un-proofed exposures and stacks of unseen contact sheets made from an estimated 3,000 rolls of film.

Or probably the undisputed queen of "never used" shots, Vivian Mayer:

Out of the more than 100,000 negatives... in the collection, about 20-30,000 negatives were still in rolls, undeveloped...

[BobShaw]

Not sure what you are referring to

Ok, a more verbose answer.
I am not a lawyer and every country is different, but generally when legal things fall into grey areas a judge is called upon to make a judgement decision. That is usually based on some sort of test of what a reasonable person would think.

To me at least, if a person with fairly advanced photographic experience or a professional with reasonably advanced equipment takes a photograph of someone else's material in a manner that is not incidental but fills the frame then that person intends to use that image in some way. That to me is a copyright infringement. If it's for inspiration then either buy it or remember what it looked like.

To say you weren't going to use it in some way is really like being caught with a container of copied CDs and saying they were for personal use.

As for research and education use that is also fairly questionable. You can generally use a small percentage of a work with appropriate acknowledgements. However at least in Australia a school band of a dozen playing in a park must have 12 original copies of the music to present if asked.

I think if you wish to photograph someones's art work then you should ask permission and if they decline thank them and walk away.

[DeanChriss]

It's my understanding that editorial use is allowed under copyright law while commercial use is not. If the professional pointing his camera at your stuff works for a newspaper or magazine that's doing an article about art shows, then copyright does you no good at all. He or she can take to picture and those images can be published. If they are using those images to promote the art show it's a different story because that's commercial use.

[wolfnowl]

The question is: does taking a picture, standing on public grounds, outside the artist's tent, of the tent's contents, constitute a theft or "conspiracy to engage in copyright piracy" or not.

In Canada, no.

The only real issue comes up with regard to people in the image, and then it becomes a civil case if someone wants to sue for invasion of privacy. Here the courts get to decide whether the image was of _____ and happens to have a person in it, or whether the image is of a person with _____ as a backdrop. The (perceived) invasion of privacy would take place at the moment of capture, no matter what was done with the image afterward.

Can't answer for other countries, though.

Speaking for myself, if I saw a sign like that I'd steer a wide berth of that person AND whatever they had for sale. It reminds me of a car I saw once at a highway restaurant in northern Ontario. On the rear passenger window was a poster with the woman's face (presumably the owner), and "IF YOU SEE ANYONE IN THE CAR WITH ME CALL THE POLICE". I thought, "I wouldn't get in the car with you if you paid me." California plates, but paranoia doesn't have a postal code.

Mike.

[joneil]

  I ran into this situation directly in two different ways.

 First situation, friends of mine, at a show in Toronto, chasing off photographers.   These same people had been around the year before at the same show (it runs every year) , photographing their wares, and six weeks later guess what shows up in Toronto - cheap copies, low quality knock offs, made overseas, flooding the market.  Sure they complained, but there is so much forgery of brand name products showing up at flea markets and trade shows, nobody form customs to the police can keep up with it.

   So, when they showed up again, that's why they  physically chased them away.   My friend told me he would of punched the guy in the face had he the chance.  He then would of loved to call the police himself because it might of been the only time to catch the guy and have him charged with counterfeiting.  That might sound harsh, but apparently the other guy (the forger, with the camera) knew that too and got the heck out of there in a hurry.

  Second situation - this past February, the annual art fair and show in Key West.   Been there a few times, some really nice stuff.  Took many photographs this year, and years past.   Never an issue.  Why?  First off, I never, ever, ever take photography up close.  Secondly, I only walk around with a prime wide angle lens, never a zoom, and I only take general crowd shots.   

   IMO, it is all common sense.  Also in Key West, I walk around a whole day, visiting the different private art galleries with my camera, never an issue.  Why, i keep my camera slung behind my back.  They all have big signs in those private stores - no photography, so I don't.  About the most that ever comes is "sure, you can take a photo photo of the front of the store on the street" or maybe " hey, that's a nice camera."   Never an issue.

   Also down in Key West, and maybe a bit off topic, but if you ever visit Fort Zachary Taylor state park, and see the old civil war fortress, you will see that a big, active military base right next door.  Litterally next door.   You see big, big signs, no photographing the military.  Nada.   I stand there, camera slung, nod hello at some of the military people who look at me and make eye contact, and i almost always get a polite nod back.   Then some idiot stands beside me, points their little compact or smart phone or even iPad (the number of people who walk around Key West with iPads shooting photos is sometimes mind boggling), and boy oh boy, do they get a dressing down. 

  So to me, this whole issue boils down to common sense.  Let me go back to the Key West art fair.  A number of those people/artists selling products were photographers selling prints.  Same for some of the private art galleries in Key West.  Talked to several of them, the art fair and the galleries.  All of them have "no photos" signs or something similar.  All of them I talked to in one way or another have stories about people photographing their work, and then using it on a web site or selling a copy cat forgery or something similar.

  To me, it all boils down to respect for fellow photographers, nothing more.

[Slobodan Blagojevic]

I am getting tired of this presumption of guilt. We are treated as terrorists when photographing buildings, as pervs when photographing children, and now as thieves at art fairs.

And now angry artists mob lynching? Looks like I'd need that pepper spray for more species than just bears.

[Isaac]

My friend told me he would of punched the guy in the face had he the chance.  He then would of loved to call the police himself because it might of been the only time to catch the guy and have him charged with counterfeiting.  That might sound harsh, but …
…
IMO, it is all common sense.

Does it strike you as common sense that if your friend had "punched the guy in the face" the police may have regarded that as criminal assault?

[chez]

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.

Rather than being sneaky and secretly snapping some photos of the various tents...maybe coming up and talking to the artists about their setups might have lead to much more information than a simple picture. Communications usually clears up most misunderstandings and usually leads to what you are after much more efficiently and effectively than some form of voyerism.

[chez]

I am getting tired of this presumption of guilt. We are treated as terrorists when photographing buildings, as pervs when photographing children, and now as thieves at art fairs.

And now angry artists mob lynching? Looks like I'd need that pepper spray for more species than just bears.

So you are OK if I stand on a neighboring deck with my telephoto and photograph your young children in bathing suites as they run through sprinklers?

From public property photographing just for the hell of it. Innocent of being a perv until proven guilty...right?

[Slobodan Blagojevic]

So you are OK if I stand on a neighboring deck with my telephoto and photograph your young children in bathing suites as they run through sprinklers?...

Yes, absolutely. What is wrong with that? Sounds like a great photo opportunity to catch a spirit of childhood.

Even "creepier" scenarios than that have been backed by courts.

[fotagf8]

I am not sure I agree, or at least I would be careful.  I take the position that if it is in plain view and I am not trespassing, I generally have a right to photograph it, but there may be some exceptions.  But assuming the general rule applies, I would always be careful with children, particularly ones in swimming suits.

Here is why:  I was taking a workshop with another photographer.  He reported that he was in a public park, saw children on a slide, and snapped some photos without thinking much about it.  I don't know this guy well, but I would be shocked if he were a pedophile. He is an amazing photographer.  An hour later, when he was back at home, his doorbell rang.  A police officer was standing there.  The officer informed the photographer that several parents had complained about him.  The police officer wanted to look at the photographer's camera and computer.  This is where we get into tricky territory.  The photographer consented to the search even though there was no warrant.  After an hour, the police officer concluded that the photographer did nothing wrong and left.  The photographer nevertheless felt violated.  So you have to take into account the hassle factor:  It may be legal to do something, but is it wise?

I spoke with a former criminal court judge about this incident.  He indicated that a court probably would not have granted a search warrant on these facts, but that he would have advised a police officer who was concerned to continue to follow up to build a basis for a warrant. That could have meant more surveillance.  In the end the photographer had nothing to hide, so consenting to the search was probably the right decision.  Of course, there are photographers who would deny access, and that is there right.

It is also worth noting that several states have in recent years enacted laws about photographs intended to arose one sexually.  I believe one of these laws was inspired by a photographer photographing women on a beach.  There is also the recent California anti-papparazzi legislation.  If they haven't already been, we can expect laws like these to be subject to constitutional challenge, but do you want to be the test case?  Once again, it comes down to how badly do you want the photograph, do you recognize the practical risks, and have you taken the action to minimize those risks. 

By the way, the New York Post article sensationalizes the story by using the word "creepy." I read about these photographs and they are not creepy.  There was a lot of artistic thought and theory put into making them.  This wasn't an amateur photography.  Someone who saw them in a gallery was knocked out by them.  I was a bit surprised about the case from the standpoint of privacy rights, but I didn't have all the facts.  I think that everything the photographer captured would have been visible to the naked eye standing on the street, although I am not sure.  However, the case turns out to be a potentially important one in the publicity rights realm.   

[chez]

Yes, absolutely. What is wrong with that? Sounds like a great photo opportunity to catch a spirit of childhood.

Even "creepier" scenarios than that have been backed by courts.

So you are ok with a stranger peering into your backyard and photographing your children without your consent?

I sure in the hell am not and if you did that to my children, you'd be eating a 5 knuckle sandwich in no time. Sometimes being within the law does not me you are right....and this is one of those cases.

Being right and stupid at the same time. 

[Slobodan Blagojevic]

So you are ok with a stranger peering into your backyard and photographing your children without your consent?

I sure in the hell am not and if you did that to my children, you'd be eating a 5 knuckle sandwich in no time....

Ah, now you are creepy-tizing the scenario. First it was a neighbor, now it is a Peeping Tom? I think there is probably a legislation against Peeping Toms somewhere.

Look, if my child (and I do have a young daughter) is playing in public view of the neighborhood, she will be dressed properly (i.e., not naked) and behaving properly, knowing that she is in public view. There is no reasonable expectation of privacy in such a case. If a neighbor can see her from his deck, he/she can photograph her too, I have no problem with that. Otherwise, we would not be able to see gazillion photographs like these (warning: NSFW... might see a naked toddler occasionally ). Or we would not be able to see some iconic photography throughout history, containing children, of enormous documentary and artistic value.

As for your "sandwich," remember that sandwiches have both ends.

The really creepy thing about all this is the idiotic puritanic attitude and herd mentality. If Michelangelo’s David would come to the States*, I am sure there will be demands for it to wear pants. If you think that is ridiculous, consider the already existing case of a Midwest hotel, who had a similar sculpture in its lobby, and had to put pants on it at the request of seminar participants.

The really creepy thing is that people get arrested, fired from work, careers ruined, kids turned to social services, etc., for the "crime" of having pictures of their own little children while taking a bath, just because some sanctimonious jerk and real creep reported them to the police. Herd mentality then kicks in, they are fired, etc. Never mind that courts later on decide in their favor. What is next? Shall we invite social services every time we bathe our kids?


* Ah, yes, speaking about that visit:
 

[Slobodan Blagojevic]

Rather than being sneaky and secretly snapping some photos of the various tents...maybe coming up and talking to the artists about their setups might have lead to much more information than a simple picture. Communications usually clears up most misunderstandings and usually leads to what you are after much more efficiently and effectively than some form of voyerism.

I was not sneaky nor secretly snapping. Did it in plain view, and as I explained on several occasions, I was just taking visual notes, e.g., a tent label containing web site and/or phone number, instead of pulling a notebook and pencil and writing it down. And I had numerous talks with artists, prior to coming to this show and at the show. But thanks for lecturing.

[LesPalenik]

The really creepy thing about all this is the idiotic puritanic attitude and herd mentality. If Michelangelo’s David would come to the States*, I am sure there will be demands for it to wear pants.

Or those heavy knee-length swimming outfits.

[joneil]

Does it strike you as common sense that if your friend had "punched the guy in the face" the police may have regarded that as criminal assault?

 Yes.  For the record, that is *exactly* what he was hoping for.   He was suffering financially because of the copycat conterfeitting, he felt the police we useless, so he exactly wanted something like that to happen so he could go the media with it all. You see, one small part of the problem is the police could never find the guy, so if that guy laid criminal charges for assault, he in turn would of been right there for the police to arrest and for the summons servers to serve him the papers for a civil lawsuit too.

   Hell of  a system we live in, isn't it?

[joneil]

Here is why:  I was taking a workshop with another photographer.  He reported that he was in a public park, saw children on a slide, and snapped some photos without thinking much about it.  I don't know this guy well, but I would be shocked if he were a pedophile. He is an amazing photographer.  An hour later, when he was back at home, his doorbell rang.  A police officer was standing there.  The officer informed the photographer that several parents had complained about him.  The police officer wanted to look at the photographer's camera and computer.  This is where we get into tricky territory.  The photographer consented to the search even though there was no warrant.  After an hour, the police officer concluded that the photographer did nothing wrong and left.  The photographer nevertheless felt violated.  So you have to take into account the hassle factor:  It may be legal to do something, but is it wise?

-snip-
      Ran into something similar myself a few years ago myself.  I was photographing a recently painted mural on the outside wall of a public building.   An angry father came charging at me saying I was photographing his child in the yard next door, whom I did not even notice, nor photograph.  Make a long story short, there was no talking to this guy, but as the old Kenny Rogers song goes, sometimes you have to know when to fold them and walk away.

     Not saying it is right, not saying I like it or I agree with it, and not saying I like how things are going anymore.  I will also say for the record, it amazes me how everywhere you go there are security cameras all over the place and how the general public feels "safer" with these cameras, but that same general public, including sometimes police, will freak out at a guy with a camera shooting the same streetscape that is already covered by those video cameras.

 Nope, makes no sense at all, but in the real world, you gotta use a bit of street sense and choose your battles when you can.

[Isaac]

if that guy laid criminal charges for assault, he in turn would of been right there for the police to arrest and for the summons servers to serve him the papers for a civil lawsuit too.

Was that expected to be some kind of defense against criminal charges for assault?

[Slobodan Blagojevic]

... he in turn would of been right there for the police to arrest and for the summons servers to serve him the papers for a civil lawsuit too.

To arrest for what!? For being the victim? "Officer, this guy was taking photographs... arrest him!" Seriously!? The most you could do is to get his contact details for a civil suit. But you (rhetorical you) are going to charge him with what? Taking pictures!? You should be able to prove the link between him and the counterfeited goods, something even police would need to spend quite some time investigating and building the case. Not to mentioned that the price to pay for all that is your own assault charge, which might lead to jail time.

[Isaac]

…it amazes me how everywhere you go there are security cameras all over the place and how the general public feels "safer" with these cameras, but that same general public, including sometimes police, will freak out at a guy with a camera shooting the same streetscape that is already covered by those video cameras.

Nope, makes no sense at all…

Let's make sense of it for you -- CCTV seems to have been accepted as a legitimate way "to protect" property and more generally "to protect" the public going about their business.

Is GwC seeking "to protect" his property or "to protect" the public? So what is GwC doing and does he need my permission to do it? Do I want GwC to take photographs of me and mine (or my art work)? Do I want to be an unpaid model?