Fought the Law
infringed a bunch of copyrights last week!
Last Thursday an artist/friend/client left a message on my
voice mail: ďTake a look at Metroland and then call
me.Ē I could tell by the tone of his voice that something
was definitely up. So I grabbed a copy and immediately saw
what it wasóit was the summer fashion layout.
Every shot involved a piece of public art. Models in summer
duds were splayed around sculptures by local artists like
Leigh Wen, mi Chelle Vara, Jim Lewis, and Peter Barton, all
part of the Downtown Albany BIDís Sculpture in the Streets
exhibit. And every shot infringed the artistsí copyrights
in their sculptures.
So youíre probably thinking ďHey! Wait a minute! Those things
are out on the street! You mean we canít take pictures of
them? This is silly!Ē
I agree itís silly, and thatís part of why Metroland
wonít get in trouble, but hereís the deal: Each sculptor has
a copyright in his or her work, and that means each has a
bundle of exclusive rights, including the right to display
the work, the right to make derivative rights, and the right
to make and distribute copies. By submitting the sculptures
to Downtown Albany BID, the artist impliedly gave BID permission
to display the work. But thatís about it. The artists didnít
give Metroland, or anybody else, the right to create
or reproduce two-dimensional versions of their three-dimensional
works. In other words, they didnít give you permission to
take pictures of the sculpturesóor use them in fashion spreads.
In public-art contracts that Iíve dealt with, there is usually
an explicit grant from the artist to the sponsoring entity
for the entityís use of photographs of the work for promotional
or fundraising purposes. But Iíve never seen a grant like
that to the general public.
This certainly didnít occur to Metroland before running
the spread, and thatís not surprising. Metroland even
credited all of the sculptors on page 23 of last weekís issue,
which doesnít excuse the infringement, but it shows at least
intent to try to do the right thing. I wonder how many of
the sculptors even batted an eye at this use of their work,
given that the purpose of public art is to engage the public.
Itís not like my phone was ringing off the hook, and had there
been a big controversy, Iíd have heard about it from the artists,
or from Metroland, or both. The artist who called me
mentioned being perplexed as to whether this was even an issue,
and just wanted to discuss it with me.
I suppose if the sculptures had been used in advertising or
something tasteless, the offense would be a little more obvious.
But folks tend to assume that art thatís out in public belongs
to the public, and thatís not an irrational thing to think.
I mean, how many local bands, looking for a change to the
usual urban-street/old-brick-wall promo photo, have come down
to the Empire State Plaza and done photo shoots around the
sculptures there? Like, maybe, every one? And the Sculpture
in the Streets exhibit makes for a nice backdrop for a
fashion shoot. But itís still infringement, if the artist
wants to get porky about it.
What makes this even weirder is that the law allows the non-advertising
publication of photos of people shot in public places without
permission. This means, yes, the sculptures have greater rights
than people! Strange but true! The law says folks donít have
an ďexpectation of privacyĒ when theyíre out in public, so
itís OK to photograph them and publish the photos. The sculptures
are protected by copyright, and one canít copyright oneís
own image, not that people havenít tried.
What would happen if one of these artists got all lathered
and lawyered-up and decided to make a federal case out of
this? Other than the artist looking pretty dweeby, not much.
First, the sculpture would have to have a registered copyright
before this thing could go to court, and the registration
would have to have preceded the infringement for there to
be any possibility of a significant damage award. Unique sculptures
like these arenít the sort of thing artists rush to get copyright
registrations for, itís just not necessary. Second, itís hard
to see any court being terribly moved by the gross injustice
of having a work used in a fashion shoot without permission,
so the likelihood of a big damage award is pretty slim.
So, if youíre one of the sculptors and youíre all POíd about
this, donít call me. Besides, Iím a little conflicted out.