Photographing at Art Fairs

[Schewe]

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.

Uh no...he's wrong. The doctrine of "Fair Use" deals with this. From the Copyright Office: One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

So, the mere act of photographing a copyrighted artwork can't be an infringement or else there would be no fair use possible.

It boils down to what use a copy of a copyrighted artwork might be used for...And no, I'm not an IP attorney, but I know a bit about US Copyright law.

This guy is trying to use strong arm tactics to protect what he thinks are his rights-which pretty much conflict with copyright statutes...

[Jeremy Roussak]

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.

And the answer is: no.

Jeremy

[PeterAit]

The bottom line is, IMO, that certain people need to be whole lot less uptight about casual photographers taking pictures. Fact is, if a photographer did want to take photos for nefarious purposes they could easily do so without anyone knowing.

[Kevin Gallagher]

Hi Slobodan FWIW, I did the art fairs for a few years and from what I saw it was ALWAYS the ones that weren't selling anything or had little or no booth traffic that had that kind of attitude. I'll never forget one guy in particular that was right next door to me who actually told 3 or 4 people that were talking in front of his booth "not to congregate as they were blocking other customers" well they came into my booth and bought several pictures.

[Isaac]

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

So, the mere act of photographing a copyrighted artwork can't be an infringement or else there would be no fair use possible.

afaict an unauthorized photograph of a copyright art work is technically an act of infringement; then the question becomes - is that infringement covered by the fair use exception.

"Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute may have to be resolved by a lawsuit or arbitration."

Public Art Lands Photog in Hot Water

[Isaac]

Some context:

-- Stealing Intellectual Property at the Art Fairs

-- Art Basel Week: Can I Take a Picture of a Picture?

[Jeremy Roussak]

-- Stealing Intellectual Property at the Art Fairs

I'd love to feel that anything I'd produced was worth that kind of effort to copy. Sadly, I have too much self-knowledge.

Jeremy

[Iluvmycam]

Photo any damn thing you want.

Carry pepper spray, a 500 lumen tactical flashlight and a folding baton.

If they get aggressive blind them with the light. If they don't get the message, then the OC spray. Finally crack their head open like an eggshell with the baton as a last resort. If you want to be real nasty then use a folding knife and start cutting tendons.

...that is how I do it on the street.

In the UK, they can't have pepper, a baton or a folding knife. Them poor bastards have to use WD40 or a sharp pencil.

People are very nasty nowadays. First and foremost the photographer must protect themselves from the attack of their subjects. In Europe I don't have to worry about guns. In the US, guns are always a concern. If you see someone grabbing for something to attack you they get sprayed and taken down...hard!

[Isaac]

"Note that the right to photograph does not give you a right to break any other laws." Know Your Rights: Photographers

[zippski]

Hi Slobodan;

Well, I am a lawyer, although I have litigated more trademark than copyright stuff in a prior phase of my career.  The laws in Canada, US and for that matter most common law countries throughout the world are pretty similar.  There is generally no copyright law prohibiting photographing of private property from public property (there are very rare exceptions, usually dealing with national security).  There MAY be restrictions on unauthorized reuse, but generally that prohibition would be stronger coming from the Fair management side as an implied term of your ticket purchase, not the exhibitor.

In this case, the guy is clearly a deranged nut bar.  If I shot a photo of his, ahem, "art", and he tried to grab my camera on the basis of his warning sign (hint: a good sign you are dealing with several degrees of crazy is to look for the word "conspiracy" somewhere in the warning, and the sign is laughable, BTW), I would likely be able to file a criminal complaint seeking to have him charged with assault, threatening, AND sue him civilly for same.

If the fair had a general prohibition against photographing the exhibitors, that could be a term of your attending, and then only maybe, in terms of prohibition.  Think of the usual restrictions on carrying a big camera into a rock concert for example.   

So, snap away, and tell the guy to go and **** himself if he continues to hassle you.

Leigh
zippski

[Schewe]

If the fair had a general prohibition against photographing the exhibitors, that could be a term of your attending, and then only maybe, in terms of prohibition.  Think of the usual restrictions on carrying a big camera into a rock concert for example. 

Yep...that is the only way to prevent the casual shooter from shooting. But this isn't based on copyright, this is a contractual aspect of access. If one agrees to the terms of access (by accepting some sort of terms by entering) then an argument could be made that "no photos allowed" comprises a breach of contract if you take photos. But this has zero to do with copyright...

Interesting digression, I was in Florence, Italy and went to the museum that houses the David sculpture...it says "no photos allowed" and that purely pissed me off. So, I spent about a half hour shooting covert images of David (the original statue)...I even got a great shot of David's butt (an angle you hardly ever see). I personally was proud of myself for intentionally violating the museum access rules! My wife was horrified...but she really like the shot I did of David's butt. I'm gonna make a print for her birthday (but not offer it for public sale).

Here in Chicago, unless the showing is of a living artist (where copyright comes into play) the Chicago Art Institute does NOT disallow photography...they don't allow flash photography (said to be destructive to the artwork and disruptive to other viewers) and they don't allow tripods (without express prior permission).

As far as I know, it's the same deal for the Met in NYC.

There is a big difference in controlling "access" vs controlling "copyright". It's far easier to control access than copyright. And if the work is in the public domain, the whole "copyright" issue is, spurious...

YMMV...

[Schewe]

-- Art Basel Week: Can I Take a Picture of a Picture?

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...

The phrase: Be Careful Who You Listen To comes to mind...

Yes, Fair Use is tricky...but it's based on the context of the use, not the act of making a reproduction (as in a photo of an artwork). If taking a photo of an artwork was prohibited by "copyright law" then one couldn't actually engage in legitimate fair use.

So, no...the mere act of taking a picture of an artwork isn't an infringement...trying to do anything outside of the scope of fair use would be...

[Jeremy Roussak]

"Note that the right to photograph does not give you a right to break any other laws." Know Your Rights: Photographers

"Specialist subject: the bleedin' obvious." Basil Fawlty.

Jeremy

[louoates]

Although signs posted said No Photographs, it stopped very few from snapping away at the David and in the Sistine Chapel, flash and non-flash alike. I confess to snapping a few with my cell phone just so I fit in.

[Slobodan Blagojevic]

... I confess to snapping a few with my cell phone...

Did you buy it? 

[Slobodan Blagojevic]

... (hint: a good sign you are dealing with several degrees of crazy is to look for the word "conspiracy" somewhere in the warning...

Leigh, thanks for the legal perspective. One question, though: isn't "conspiracy" a valid legal concept, i.e., "an agreement between two or more persons to commit a wrongful act"?

[Isaac]

-- Art Basel Week: Can I Take a Picture of a Picture?

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...

The phrase: Be Careful Who You Listen To comes to mind...

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

That paragraph tells us the Emmanuel Fremin Gallery shows both Antoine Rose's photographs and the blogger's photographs.

So, no...the mere act of taking a picture of an artwork isn't an infringement...

Can it be an infringement before a court has found it to be an infringement?

From the 6th paragraph "But remember, this [fair use] is a defense, so it only has value after you are asked to remove the work or are sued, which copyright holders can still do, regardless of whether we think it is fair use."

[Slobodan Blagojevic]

... Can it be an infringement before a court has found it to be an infringement?...

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

[Isaac]

Equivocation often results in misunderstanding.

[Jeremy Roussak]

Leigh, thanks for the legal perspective. One question, though: isn't "conspiracy" a valid legal concept, i.e., "an agreement between two or more persons to commit a wrongful act"?

Conspiracy is a valid concept, but your definition hits the nail on the head and demonstrates the absurdity of the notice you quoted: "two or more persons". You can't conspire with yourself. I agree with Leigh, though: use of the word out of valid context gives rise to a rebuttable presumption of insanity.

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

Of course you can. You are presumed to be innocent; but whether you are or are not guilty depends on the facts, which exist before the matter comes before a court.

Jeremy