Copyright Moral Rights

Should Art Fairs Allow Visitors to Instagram Their Favorite Artworks?

Art Fairs

In today’s social media-driven world, it seems that art fairs and gallery openings are becoming more about taking selfies with your favorite pieces than it is about buying any art. With so many images of artworks running rampant on the internet, we have to ask ourselves – is it copyright infringement? Or can the practice be considered fair use?

If you’ve ever been to an art fair, a gallery, or a museum, you’ve probably noticed people snapping photos of artworks with their iPhones and uploading them to Instagram or Facebook. While most museums have a no photos policy, most galleries and art fairs allow the practice because it seems to be good for business. After all, social media is basically free marketing, right?

Lately, however, more and more gallerists are questioning whether this practice is fair to them. Often times, art fair goers and gallery visitors aren’t necessarily serious about buying – they’re more interested in perusing and enjoying the fair, curious about what’s going on in the often-exclusive art world. In many cases, students and burgeoning artists are attending to get ideas, and taking photos is a critical aspect of getting inspired and understanding how a particular artistic flourish was achieved. Whether the fact that a photo of an artwork is circulating around the internet affects the work’s value remains to be seen, but it’s understandable that gallery owners intent on selling these works would be miffed.

Additionally, a whole host of issues can arise if these kinds of practices are allowed to happen, from copyright infringement considerations to blatant copying and more. On the other hand, artists can stand to receive some benefits from allowing their work to be disseminated across the internet, and whether or not this practice constitutes copyright infringement isn’t so cut and dry. We’ll discuss arguments for and against below.

Is Posting a Photo of an Artwork to Instagram Copyright Infringement?

In an earlier Art Law Journal post, we discussed whether snapping a photo of a Renoir for social media constitutes copyright infringement. It’s an excellent example to use because the question largely depends on whether or not the work still enjoys copyright protection in accordance with the Copyright Act.

According to the Copyright Act, copyright protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Copyright protections grant exclusive rights, including the right to reproduce, distribute, perform, display and create derivatives of the work.

It’s equally important to identify the duration of the life of a copyright’s protection in order to get a sense of whether posting a photo to Instagram violates copyright infringement. Under the 1976 Copyright Term Extension Act, affectionately nicknamed the Mickey Mouse copyright act due to Disney’s extensive lobbying efforts for the passing of this enhanced term of copyright protection, a work is initially protected “throughout the life of the author, plus 50 years after the author’s death.” In addition, the Act created a static seventy-five-year term (dated from the date of publication) for anonymous works, pseudonymous works, and works made for hire. The extension term for works copyrighted before 1978 that had not already entered the public domain was increased from twenty-eight years to forty-seven years, giving a total term of seventy-five years. In 1995, the Act was increased even more substantially, offering protection to the duration of the author’s life plus seventy years for general copyrights and to ninety-five years for works made for hire and works copyrighted before 1978. After that, a work has officially entered the public domain and is no longer protected by copyright law.

When it comes to our Renoir example, determining whether or not taking a photo of the work is fairly easy, since Renoir has been deceased since 1919. That means, however, that taking images of more current works of art would most certainly be considered copyright infringement since it’s a reproduction of the work.

Wouldn’t a Photo Be a Totally New, Copyrightable Work?

In our prior article, we discussed whether the fact that you’ve taken a new photo wouldn’t create a totally new, copyrightable work as a matter of fact since copyright is generally assigned to artwork the second it’s created. First of all, unless the work has already entered the public domain, you won’t be able to claim that your taking of a photo does not constitute copyright infringement. Second, even if the work were free of any copyright protections, the photo you take won’t necessarily be considered copyrightable.

According to the Act, a work has to be “original” in order to receive copyright protection. When you’re taking a picture of somebody else’s work, you’re not being original, you’re just being a copycat. However, the act extends this kind of protection to flat paintings or pictures only. Photos of 3D works, such as sculptures, would be considered copyrightable because they require the photographer’s consideration of shadow, angle, lighting, and depth of field.

What About Fair Use?

Some might argue that taking a photo of an artwork at a fair, gallery or museum might be considered fair use. As we’ve discussed previously on Art Law Journal, taking a photo of a copyrighted artwork might be considered fair use depending on the following factors:

  • the purpose and character of the use, including whether such use is of a 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; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

Against all of these factors, it seems that taking a photo of someone’s artwork is nothing more than a blatant copying of that person’s work. Even if you don’t benefit from it financially, you’re still taking someone’s entire creative product and posting it to your social media without permission. And since you’re likely taking a photo of the artwork in its entirety, there’s no real argument to be made regarding whether or not you’ve used a substantially minimal enough portion to constitute fair use. Moreover, if you’re simply taking an image of someone’s work, without making any kind of alteration or commentary on the work and its subject matter, you’re not really enhancing the work’s creative expression, which is ultimately what fair use intends to encourage. Finally, if there’s a photo circulating on the internet of an artwork, that would likely diminish the work’s value, because it would seem far less exclusive to a potential collector.

So Why Does the Practice Go On?

If the guidelines are so clear as to whether or not it’s okay to take pictures of artworks at art fairs and galleries, then why is the practice so rampant? For many gallery owners, the idea that visitors are interested in anything but a selfie opportunity is silly. Most of the photos taken while works are on public display won’t have any resale value because the resolution wouldn’t be high enough. In fact, most people wouldn’t even think to sell photos of artworks online – that’s simply not the point of the practice. Instead, gallerists tend to take the view that marketing is marketing, and it’s even beneficial for artists to have their works shared on social media – particularly if the person doing so is a celebrity. At the end of the day, no one wants to be the one booth at the show that doesn’t allow photos to be taken, unless you’re interested in ensuring that your booth remains empty. It may not be the best situation, but unfortunately, the alternatives aren’t really an option.

How do you feel about patrons taking Instagram photos of artworks art fairs?


About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

Add Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

Orangenius Has Launched!



The Latest From Artrepreneur

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]

  • Planning for the Copyright Registration Process

    It has become a common refrain among lawyers who represent photographers and other artists that it is important to register your work with the U.S. Copyright Office. Although registration is not required for copyright protection, it is a […]

  • The Basics of Insurance for Artists

    There are many legal aspects of running an art-related business that could be fairly characterized as less than interesting, but few topics inspire more blank stares, or glazed-over eyes, faster than insurance. Like a lot of legal topics, thinking […]

  • Do You Know How to Protect Your Creative Business From a Devastating Lawsuit?

    Running a successful creative venture often involves understanding business just as keenly as you learn your craft, and for artists and gallery owners facing the threat of a lawsuit, it’s important to understand the steps you can take to […]