Hi,

I shoot interiors and I have a question about taking pictures of private interior spaces that may include original works of art. Do I need to obtain permission from the copyright holders of any and all artwork that might appear in my photographs? If I don't obtain permission and releases, could I be infringing their copyright? I have done some research on this I have heard that usage like this could be permitted as "incidental inclusion".

However, I have also talked to some people in the movie business and they said they must purchase licenses for any artwork that appears on screen, even if it's a background element that most people would never notice. Could this establish a precedence for still photography as well?

Thanks in advance for any advice.

Andrew

Generally this should not be a problem because of the doctrine of fair use. This doctrine looks at factors such as the purpose of the photograph and the economic effect on the copyright owner. The analysis is somewhat complicated but if the depiction of artwork is incidental, there is unlikely to be a problem. For example, if you were to photograph the artwork without permission to make a poster or prints, you would easily be found an infringer because you are taking advantage of the artist's work in a way to profit from its direct appeal (technically speaking, you are violating the artist's exclusive right to make derivative works such as posters and prints). If you were to photograph a model on a distinctive sculpture for use in an advertisement, and the sculpture was a highly dominant element, you likewise could be found liable for copyright infringement. However, if you are taking photographs where artwork is incidentally present, the prospects of being liable for copyright infringement are remote. For example, if a public library happens to display a prominent wall hanging, you won't be liable for taking architectural photographs of the interior because the purpose is to depict the interior as a whole and the effect will not damage the artist's right to profit from the artwork.

If you stop and think about, an overly-rigorous application of copyright in such circumstances would cripple much photographic expression because copyrighted material is everywhere. For example, an ordinary street shot might show copyrighted fabric designs on clothing, copyrighted literary works (e.g., newspapers in vending boxes), copyrighted advertising posters, as well as public artwork. The fair use doctrine is what allows for photography under these kinds of circumstances.

With respect to the movie industry having to obtain licenses for artwork, this generally applies to works of art that are intentionally included in production sets such when a crew hangs an art poster in a set that depicts the home interior of a family in a sitcom. It is not analogous to most still photography. If you want a more detailed discussion of infringement issues, you might want to read my book Legal Handbook for Photographers which was released in its second edition last month.

Thanks very much for your response. I've spent some time looking into this issue was coming to similar conclusions. One thing that really had me confused, however, is a publication I found by Duke University called Tales from the Public Domain: BOUND BY LAW?

http://www.law.duke.edu/cspd/comics/index.html

It's a comic book, yes a comic book, available online and it's a pretty interesting read, with lots of examples of fair use and copyright infringement. It is primarily written for documentary film makers, but I'm sure much of it applies to still photography as well. It provides many examples of "copyright infringement" that sound very much to me like the "incidental inclusion" that you described, but apparently they are not. Or at least the copyright holders had deep enough pockets to make life difficult for the film makers if they didn't pay the demanded licensing fees.

One example describes the filming of the documentary Mad Hot Ballroom when a cell phone rang, and the ring tone was the theme for "Rocky". If the film maker wanted to use that footage they had to clear the rights with the copyright owner. It cost them $10,000!

In another documentary, 4 1/2 seconds of the Simpsons was accidentally captured on a TV in the background. Apparently Matt Groening didn't object, but FOX demanded $10,000 for the usage. The film maker argued it was "fair use", and apparently had a good case, but FOX said they would be very willing to litigate and it would be difficult and costly for the film maker. He was forced to cut the footage, even though he thought it was important for the scene.

Isn't this very similar to creating a photograph that includes the copyrighted work of another artist? Doesn't this force documentary film makers to obtain copyright permission for every incidental inclusion and unfairly "cripple" them as artists? What if I took a photograph that included a television set in the background with a scene from the Simpsons on it?

Cheers and thanks very much for the great info. I will definitely pick up a copy of your book.

Andrew

I have not read the book you reference but it sounds like the instances complained about involve copyright owners who are being overzealous in enforcing claims that have little merit and risk-averse producers who give in too readily. These instances are made out to be somewhat common and have added fire to the movement to weaken copyright protections. Ironically, the movie industry tends to be highly-agressive in claiming infringement yet diffident when it comes to standing up to frivolous claims. The better ground in my opinion is to be reasonable when standing up for your copyrights and assertive when faced with meritless claims.

BertKrages:
...it sounds like the instances complained about involve copyright owners who are being overzealous in enforcing claims that have little merit and risk-averse producers who give in too readily.[/quote]

I certainly don't know how common this is, and the examples cited may be rare, but it sounds like it may be really getting out of hand. In another scene from Mad Hot Ballroom, during filming of a foosball game, one of the players spontaneously yelled "Everybody Dance Now", three words from the C&C Music Factory hit song. Warner Chappel demanded $5000 to use the line, and the film maker was forced to cut the scene.

[quote=BertKrages]The better ground in my opinion is to be reasonable when standing up for your copyrights and assertive when faced with meritless claims.

But how can small independent artists assert their rights and stand up to big corporations with in-house legal departments and deep pockets? It sounds like a very unfair system that leaves artists powerless.

I don't really expect an answer, because there probably isn't an easy one, but I do appreciate your replies. They've been very helpful.

Cheers,

Andrew

I know you can't comment on specific cases, but I originally asked my question because of a problem a friend of mine is having with this issue. He is being accused of copyright infringement by an art dealer who provided some paintings for a model suite that my friend photographed.

He met with an IP lawyer today for a free 30 minute consultation and I thought you might be interested in the lawyer's response. The "theater shot" he refers to is an image of a home theatre that includes movie posters.

QUOTE:

- Yes, I am guilty of infringement because I have copied an original piece of art with out the authors permission. Sculpture counts too.

- I brought in an example photograph in which a painting was visible and recognizable but very small, maybe 1-2% of the image area. Ding Ding Ding, infringement. I mentioned the theater shot with the posters, Ding Ding Ding, infringement with the added bonus of trademark infringement because of the logos in the poster design.

- The short answer according to this attorney, Anytime you take a photograph and any piece art, sculpture, photograph, logo or trademark is visible you are breaking the law. The film production companies have a position called compliance. The compliance guy has the responsibility of making sure everything is released, permitted, approved whatever.

- I explained to the attorney that this sort of compliance was a practical and financial impossibility for someone in my (our) position. She agreed but offered no solution as far as trying to comply with these laws.

I know the law is open to interpretation, but this is a pretty black and white answer don't you think? This attorney was also a representative of a "nonprofit organization that provides legal assistance and educational programming to artists and arts organizations".

Thanks,

Andrew