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Legal Question: photography of public art

Paul Mongillo , Jun 28, 2000; 05:11 p.m.

About a year ago I was up in Seattle looking for something to photograph. It started raining pretty hard (big surprise) and my girlfriend suggested we go over to the Freemont Bridge and photograph the Troll Sculpture under the bridge to get out of the rain. We did. However, while breaking down the 4x5 camera a fellow appeared from "nowhere" and read us the riot act. Said that no one could photograph the troll with any intent to sell the photographs because the artist would not stand for it. At the time I thought maybe he just lived under the bridge himself. After all this was a piece of art permenantly displayed in a public place.

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Well here we are a year later and I have a beautiful BW photo of the troll. My girlfriend is opening an import store and art gallery in August and wants me to display the troll (for sale) along with several of my other photos. Suddenly I keep hearing this fellow say "it would not be legal for you to sell photos of the troll" over and over in my head. Any comments ? Are there any circumstances where public art can not be photographed and sold ?

Responses


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C. W. Dean , Jun 28, 2000; 05:33 p.m.

Response to Legal Question

The only place to get your answer is from an attorney specializing in intellectual property rights in the State of Washington. There are many opinions on this but the local law prevails and is usually very specific. Both you and your girlfriend could be vulnerable if you get the wrong advice. Be careful here................

R.L. (Mac) McDonald , Jun 28, 2000; 07:15 p.m.

Response to Legal Question

Paul,

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This is a very important question, and I second C. W.s advice and would add that this is a constantly changing area of Law so you need to educate yourself and ask for legal assistance just to find the right attorney. It is very important to find someone that is active in this field. And I speak from experience when I say that you need to educated yourself, ignorance does not make a good defense. I hope your question generates good response. I would also add that there are many Cities,Towns, etc. that have a fee that they charge for the rights to use photographs taken in their City and or Towns etc. And I remember reading an article in a photo mag. not to long ago where I think Seattle was discussed as being one of those cities and that they have Photo Cops that read and look at publications just to find photos that they can collect on. Some how I remember that many National parks are, or are looking into, doing this to.

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Good Luck....

Ray Dunn , Jun 28, 2000; 09:32 p.m.

Response to Legal Question

Fees for photos in national parks? Gosh, I hope this wrong. Does anyone know which parks are considering this foolishness or have implemented it?

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On the one hand it does seem that a photographer somehow is profiting from public land in which he/she had no part of creating. On the other, it just seems absured to charge for something that we all own as citizens. What is the harm? This is a very thought-provoking and confusing subject. I hope someone will share some details about what is happening.

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I live 90 miles from Yellowstone, and hope to get up to Glacier NP shortly. I might sell some of my photos at some time in the future, but as a non-professional photographer, I don't feel I should be charged for practicing my hobby.

C. W. Dean , Jun 28, 2000; 10:00 p.m.

Response to Legal Question

With regard to the National Park Service policies, you can find them on line but I presently do not have the link. Basically, the policy goes something like this but be sure to confirm this as I may not have it precisely correct::::

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As long as you do not have elaborate equipment, sets, lighting, props, models, and other paraphernalia, there is no fee. When they see photographers with the above, they start to ask questions about potential commercialism and can charge a professional use fee. A lot of this is left to the discretion of the local official(s).

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Rules for State parks and private parks and gardens may be similar.

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View camera gear tends to raise eyebrows as it's a tad more elaborate than the point-'n-shoots! If questioned, I tell the truth about being a professional and supply my business card and state business license--to date I have not been charged any fee, but I might add that I am a mature gent with silver hair and I am overwhelmingly polite to the officials!!!

Donald Brewster , Jun 28, 2000; 10:03 p.m.

Response to Legal Question

The answer to every legal question is: "It depends." Photographing nature, even in a National Park may be one thing, but under federal copyright law, photographing someone's artwork (the work is most likely copyrighted) is another thing entirely. Think of it this way - - photographing and selling your prints of Half Dome in Yosemite v. photographing (copying) and selling prints of Ansel Adams' photograph of Half Dome in Yosemite. That is essentially the issue here in lurid 3-D. It might cost you a percentage, but I'd suggest contacting the sculptor and seeing what kind of license arrangement you can get -- artist to artist you'd get some respect for at least asking. Anyway, no legal advice intended or implied . . . yada, yada, yada.

David Goldfarb , Jun 28, 2000; 10:24 p.m.

Response to Legal Question

I would certainly ask and be friendly about it, and maybe it might turn into a collaboration.

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Didn't one of the professional organizations win a case some time ago involving a photographer who photographed the Rock & Roll Hall of Fame in Cleveland for commercial purposes? The H.O.F. claimed exclusive rights to sell images of its structure, but the court upheld the photog's right to photograph a building visible in the public space.

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Nonetheless, it would be much more interesting and productive to collaborate with the sculptor, if you really like the work and the sculptor is amenable, than it would be to assert the right just to sell a few postcards.

David F. Stein , Jun 28, 2000; 10:54 p.m.

Response to Legal Question

http://www.photosecrets.com/p14.html

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Whenever this issue comes up, I like to post the above by a prominent copyright attorney on "Travel Photography and the Law," with material that applies here. The copyright to that sculpture undoubtedly (w/o legal opinion intended) belongs to the artist; as you will read, even buildings constructed after a certain date hold copyright. Maybe this is why we photograph so many anonymous rocks and trees!

Dan Smith , Jun 29, 2000; 01:14 a.m.

Response to Legal Question

With golfer Tiger Woods having recently lost a suit trying to keep a painter from selling litho prints of a painting he did of Woods, the decisions are all over the place. But, shoot it in a public place & you can 'most likely' sell prints of it though not use it in an ad. Check with your attorney, or more specifically, one who specializes in intellectual property(many attorneys don't understand it and some don't know what it is either).

Bruce M. Herman , Jun 29, 2000; 02:37 a.m.

Response to Legal Question

I suggest that you contact the local ASMP chapter. They should be able to recommend a lawyer with experience in this area.

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Bruce


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