Photographing at Art Fairs

[Slobodan Blagojevic]

I've been participating in another forum in a thread about photographing art pieces at art fairs and copyright infringement by doing so. The author, a painter, made several claims that I find dubious from a legal perspective (though I am not a lawyer).

His main claim is that "photographing art without permission is theft," even when standing on public ground, outside of the artist's tent.

From what I know, the very act of photographing something is not theft or illegal, but the subsequent use of the photograph for commercial purposes is.

He wants exhibitors to put the following sign (emphasis mine):

ATTEMPTING TO
PHOTOGRAPH ARTWORK
WITHOUT ATTENDANT’S
PERMISSION :
1) SHALL CONSTITUTE PRIMA
FACIA EVIDENCE OF
CONSPIRACY TO ENGAGE IN
COPYRIGHT PIRACY AND MAY
BE SUBJECT TO LEGAL OR
CIVIL PROSECUTION;
2) SHALL CONSTITUTE
PERMISSION TO SURRENDER
THE IMAGE/S BY REVIEW AND
DELETION, BY EXPOSING
FILM, OR BY SURRENDERING
THE CAMERA;
3) SHALL CONSTITUTE
PERMISSION TO PROVIDE
IDENTIFICATION TO
ATTENDANT.
DOES NOT APPLY TO EVENT
STAFF, SECURITY, OR TO
CREDENTIALED NEWS MEDIA
ON ASSIGNMENT.
Sign courtesy of ARTandJUNK.com art show artists’ anti-piracy services.
Distribute freely. ARTandJUNK.com disclaims liability from use of the sign.

Now, I am all for copyright protection, but this seems to me a step too far, in terms of its legality. As far as I know, only police has the rights claimed above, and only if they had a probable cause that a crime is committed. Even police can not request the deletion or confiscate the equipment without a court order.

My impression is that acting in the above fashion seems like a lawsuit waiting to happen. One participant actually said:

I also had a confrontation with a photographer in XXX. She was trying to photograph my photography when I asked her to stop. She went and got the police and wanted to charge ME with assault because I got close. It took hours to get straightened out...

Any lawyer out there or someone more versed in the subject?

[byarvin]

I'm not a lawyer and I don't shoot at outdoor art fairs, but if I saw this sign anywhere, I'd just stay away. It screams "I've got problems and I can make them yours if you come too close!" I'll bet (maybe ... depending on the country and culture) that for every person like this one, there's another that would love to be photographed.

[chez]

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.

[Gary Damaskos]

Just hopefully to contribute perspective. In the heyday of the American crafts movement (70s-90s), I was part of it and I did lots of wholesale trade shows and some high end fairs. Camera's coming through were prohibited precisely because of concept stealing and even direct copying - from your friendly neighbor and from overseas. Tensions ran really high around this issue because it was bad, bad and more than a few folks saw their ideas and even their products show up places making someone else money.
So maybe this person's energy has derived from something similar - and this is his attempt to control it. Not commenting on rather there is a better way or not, though maybe there is. Not sure what your issue is with it. But perhaps what I shared may be of some use to you.
Cheers
Gary

[Slobodan Blagojevic]

Just to be clear, this is not about me or common sense. This is about legality of the implied threat in the sign. This is about confrontations between artists and security guards, perhaps emboldened by the sign's seemingly legal language, and photographers. Confrontations that did happen and will happen. We are already too often presumed terrorists when taking pictures of buildings, or perverts for taking pictures of children.

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.

[Slobodan Blagojevic]

... Not sure what your issue is with it...

I stated my issue in the OP: "I am all for copyright protection, but this seems to me a step too far, in terms of its legality."

I understand the concern you described, and the painter in question has, about copyright theft. I also personally respect the "no photography" sign when I see it. I might even support a ban on cameras in art fairs. But such requests are usually made concerning "professionally looking" cameras, with "big" lenses. In this day and age, when everyone carries a high-resolution camera phone, would banning "professionally looking" cameras really make sense? Or would it just ostracize so-called "serious amateurs"?

[Gary Damaskos]

Thanks. I indeed have heard stories about having a camera these days in some situations makes the camera person a target. And some places have decided  - country's and corporations I think - that you cannot take pics of their "property" without permission or paying a fee. Wasn't Australia trying that a while ago for instance. This kinda stuff does suck.
Gary

[Isaac]

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.

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

The 8th PACA "Copyright Commandment" states -- "Creating a painting or a sculpture from a photograph is an exclusive right of the copyright owner and you should obtain permission first."

Similarly I would expect that creating a photograph of a painting is the exclusive right of the copyright owner, and we should obtain permission first.

[Slobodan Blagojevic]

... Similarly...

Well, that is exactly the gist of the debate: is it "similarly" or not.

As I said in the OP: "...the very act of photographing something is not theft or illegal, but the subsequent use of the photograph for commercial purposes is." That would be my reading of the PACA "commandment" as well. Therefore, it does not follow that just taking a photograph of a painting is not allowed, at least not in my view, otherwise PACA might have said so directly. I might be wrong, of course, hence this post and request for clarification. Thanks for posting the link.

[Isaac]

Therefore, it does not follow that just taking a photograph of a painting is not allowed, at least not in my view, otherwise PACA might have said so directly.

Ummm doesn't the PACA statement say very directly "Creating a painting or a sculpture from a photograph is an exclusive right of the copyright owner…"

iow Copying infringes copyright ;-)

[Slobodan Blagojevic]

"Creating...from a photograph...

In my view, there are two steps here: 1. taking a photograph and 2. doing something with it. The first is legal, the second is not.

A parallel: taking a picture of anyone in public is legal, using it for commercial purposes is not.

[Isaac]

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

…taking a picture of anyone in public is legal

afaik People are not protected by copyright law.

afaik Paintings are copyright works, and I expect taking a photograph of a painting is an exclusive right of the copyright owner.

I think we've gone as far was we can, and you'll only be satisfied (or dissatisfied) when you hear it from a copyright lawyer ;-)

[Slobodan Blagojevic]

...I think we've gone as far was we can, and you'll only be satisfied (or dissatisfied) when you hear it from a copyright lawyer ;-)

We have. I am not interested in a particular outcome, I am interested in an outcome. The "pain" of being proven wrong will pale in comparison to the satisfaction of knowing what's right. As much as I hate being wrong, I hate even more being the last to realize it 

[PeterAit]

I am not a lawyer, so this information is free and possible wrong. If I were a lawyer, the information would just as likely be wrong but it would cost you $300/hour.

As far as I know, if you are on public property you can legally photograph anything and anyone you want. As Slobodan has suggested, it's what you can and cannot do with the photos that is controlled by copyright law. As an analogy, suppose I buy a copyrighted book and make 500 photocopies of it, then stuff those copies in my closet and never do anything with them. Illegal? No. As soon as I give a photocopy to someone, then it's illegal. If some nincompoop gave me a hard time about this, I would tell them to bugger off. Of course, there are some nut-cases out there that you just may want to avoid due to self-preservation issues.

[Isaac]

fwiw

In this case, “if you take a picture, you are making a reproduction and that is a copyright violation,” Prof. Sprigman said. And that applies even if you are just planning to hang the reproduction for your own private use. “That’s still a violation,” he said.

[louoates]

My sign says, "You photograph it, you've bought it".

[Slobodan Blagojevic]

That's closer, Isaac, but I am not (yet) completely convinced. The first part of the quite seems unquestionable, until it is again brought into question by introducing "private use." The use (hanging on the wall), even if private, is still a use, and I never questioned that. The whole article was about finding a cheap way to obtain a reproduction and put it on one's wall.

[Colorado David]

If you right clip and copy a copyrighted image, that is a violation of copyright regardless of what you do with the now illegally obtained image.  How is that different from taking a photograph of it in a gallery or at a show?

[Isaac]

fwiw

A photograph of an artwork is a derivative work, reproducing a three-dimensional public artwork in a two-dimensional form, which technically makes an unauthorized photograph an act of infringement. Selling the photograph, or copies of it, only continues that infringement. Placing a work of art in the public realm doesn’t strip the work of its copyright. “There is no public presence exception to the copyright law,” said John Koegel, a New York intellectual property lawyer. “It doesn’t put the work in the public domain.”

[Slobodan Blagojevic]

If you right clip and copy a copyrighted image, that is a violation of copyright ...

David, that is a statement, not a proof. I am interested in a relevant quote from the legislation that would support it, if any.