Copy-Write and Photography of art – Howard Schultze and James Allan

doedeere-workinquestion 1

This is the story – Doe Deree posted the above image on her Instagram account in February 2014.  In September 2014 an artist, Richard Prince held an exhibition of prints at the Gagosian gallery in NYC. (below) All of the 36 images were screenshots from Instagram accounts (with minor alterations to the text) .  The original photographer was never contacted.  Richard sold Doe Derees Instagram photo for $US90,000.  Doe Deree did not profit from the sale.  Is this art or theft?  This will never be tested in a court of law as Doe Deree has indicated that she won’t sue.

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Exhibition of Appropriated Images by Richard Prince. Doe Deeree’s Print sold for $US90,000

Richard Prince has established his career around appropriation of other peoples art.  When sued for breach of copy-write in 2011 by photographer Patrick Cariou he successfully argued that his appropriation was “fair use”.  In other words modern art is often based upon popular imagery (for example Andy Warhol’s Campbell Soup Tin) , and he used these freely available images in the same tradition.

This case intrigued me and so I contacted Howard Schultze a member of our club who has worked in copy-write law.  These are his comments.

 Howard, can I pick your brains on copy-write and photography.  In particular I am interested in a particular case.  Richard Prince an American artist has been taking peoples Instagram pictures from the internet and selling them without permission for up to $90,000 a piece.  http://petapixel.com/2015/05/21/richard-prince-selling-other-peoples-instagram-shots-without-permission-for-100k/  

What do you make of this sort of thing? Do you think that photographing art is  a breach of copy-write?  I am hoping to put together some thoughts on art photography in the next camera clips.

James

Thanks James. There its no doubt that copying anothers art work is copyright infringement and almost certainly in a number of countries including Australia but not the USA would be misue of moral rights as well as economic rights. It would also be actionable using civil jurisprudence and you may be able to persuade the  authorities e.g. in the  Australia the federal police to look at a prosecution under criminal law. I managed this on several occasions. It is the bane of a photographers life in fact. Photographing buildings  infringes the copyrights in the building for instance. Even photographing a garden could be infringing copyright in the plan setting out the garden and the art work which is the garden etc

It has been suggested that if the copyright work is an incidental part of the photograph that it might not actually infringe but it is a grey area. Clearly this is not a happy state of affairs and the USA but not  Australia have developed firstly as a set  of common law principles and then codified in 1976 rules allowing for fair use to be a way that many acts did not and do not infringe.  Australia has been considering a fair use doctrine but as far as I know nothing much has  happened on this recently. You then enter the world of implied licences where it can be assumed  that a publically displayed statue or I suppose a building is there to be enjoyed by the public and it might be assumed is permitted under an implied licence to be used e.g. photographed by tourists etc. However Uluru for  instance  is restricted and only tourists not commercial photographers can photograph the rock unless they get a licence for which they must pay. This is in fact not a copyright issue but you might get the point.  A huge and fascinating areas of the law.

Howard

Continuing my comments – The USA has  variations in the basics which do not include moral rights and they have a concept similar to implied licences which is this fair use concept. One must also consider the  aspect of damages e.g. how much has an infringement damaged the copyright owner. The case you  refer to is an extreme case where the rights exist but the  damage to  the Instagram photo owner is negligible. I have not read the decisions so can only presume it came under the fair use doctrine which to say the least is complex. There are things one can do which first of all lets people know that you are the copyright owner, you value your rights and there is no implied licence. Putting a copyright notice on the work for instance  can help. I initiated the enforcement of building copyright in South Australia many years ago by taking a prominent builder to court. We won  on principle and changed building practice for ever but lost in fact for that action because we brought the action  in the name of the copyright designer. There was negligible value to the designer in the design as the money is made  by the builder. We therefore recovered  only  several hundred dollars as the value of the plan.

Thanks Howard – those are some very considered responses. Do you think this has any bearing on whether we should take photographs of art?  For instance in art galleries or public places?

James 

You have asked a most interesting question. I think the answer lies in respecting the artists wishes. The key to this is to be able to ascertain what these wishes might be. Publicly displayed works without some form of contractual restraint might normally be OK  but moral rights do step in which gives an artist the right to be recognised as the artist (attribution) the right to restrain anyone changing the work and the right to constrain association of the work. You are of course also an artist. What would your wishes be in respect of photos that you publicly display? Do you make any attempt to let these wishes be known. Then there is the question of what amounts to copying. It is clear  law that the idea incorporated in the work is not copyright. This might allow for some plagiarism. Nor are facts incorporated in a work protected as such e.g. telephone directories. But there are lots of grey areas and different laws in different countries so one should not rely on general comments such as these for legal advice.

Howard

Thanks Howard.   It sounds like there are areas of grey.  As a general rule however, if you do unto others as you would have them do unto you – you are not likely to get into too much trouble.

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