Business Copyright

Taking Photos of Art: Infringement or Fair Use?

Emmanuel Fremin gallery
Antoine Rose "Up In The Air" at the Emmanuel Fremin Gallery

Well Miami is once again the center of the art world as Art Basel week is in full swing.  People from all over the world converge to see the dozens of shows, special exhibitions and of course, the parties.  And every step of the way, the entire scene is documented through but the thousands of attendees posting their favorite artists all over social media. Taking photos of artist’s work is so ubiquitous, that if galleries don’t see a lot of their works showing up on Instagram or Twitter, then they are probably not selling much.

While taking photos of other people art may seem ordinary and even helpful from a marketing perspective, it is also a copyright infringement.  And is a  good example of how copyright law needs some updating.

To figure that out, we need to look at a few things; the copyright law itself, whether it is fair use, and what the art fairs say about it.

Why is Taking Photos of Art a Copyright Infringement

First, we have to determine which work have copyright protection.  Today, every creator of an artistic work automatically receives copyright protection.  There is no need to register works with the U.S. Copyright Office or other international registering bodies (although there  are  advantages to doing so).  Nor is there a requirement to put a copyright notice “©” on their work, (although removal of information identifying the artist is a violation of the Digital Millennium copyright Act with fines up to $25,000). Copyright is automatic not, justs in the United States but hols true for the 168 countries that have signed the Berne Convention for the Protection of Literary and Artistic Works, which is the intention treaty which helps to maintain some uniformity for copyright protection internationally.

So the only works that would likely not receive copyright protection are those works where copyright has expired.  Most of the countries that have signed on to the Berne Convention have a copyright duration of at least the life of the author plus 50 years. In the U.S , copyright duration is Life of the Author plus 70 years.  However, since the U.S didn’t sign onto the Berne Convention until 1989, Copyright duration can be a bit convoluted for older works. And due to the Mickey Mouse Effect, copyright duration has steadily changed over the past century.  So depending upon when some of the works were created, they may or may not still have copyright protection.

Work also used to require a copyright notice © for any published copies of works but was never required for original work of art.  So depending upon the various requirements at the time the works were created, some older works may be in the public domain.  However, how do we know which works registered, or renewed. Its difficult to say as the Copyright Office database does not have all the records prior to 1989.   For works form artists like Calder, Motherwell, or Picasso, you can be pretty sure that any work created before 1922 is no longer under copyright protection.  So to be one safe side, we have to assume maximum protection for the works, unless we find out otherwise.  All the art basel works then are likely

That means, that every work being displayed over the course of art basel week.  S every artist receives the exclusive right:

  1. to reproduce the copyrighted work in copies or phonorecords
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  4. to perform the copyrighted work publicly
  5. to display the copyrighted work publicly

Each gallery also maintain certain rights, given to the gallery as part of the contractual arrangement to sell the work.  In order to sell an promote the work, a gallery needs to be bale to make reproductions, not for sale, but for advertising and marketing materials.  The Gallery needs the right to display the original works and distribute copies in the form of brochures.  A contract between the gallery and artist basically is a transfer of certain rights in return for selling the work. They are limited in scope and duration, usually terminating at the end of one year, whereupon they can be renewed and the contract term renegotiated.

But art patron has no agreement with the artist. Taking a photo for personal use may be ok.  Under the bateaux law.  For the art patron taking a picture of the work, technically, that would be copyright infringement since they are in fact, reproducing, distributing and displaying the work on their social media networks. If found as infringers, the Gallery and artist would have the right to have those images removed and possibly sue for damages. But before we can label them infringers, we need to look at defenses.

Fair Use

Fair use not a cut and dry defense. There is no black line that if crossed make the use definitively fair.  Rather, the courts look at four factors, which when combined and wieghted against each other indicates fair use.  They are 1) the purpose and character of the work, 2) the nature of the copyrighted work, 3) How much of the work is used in the copy, and 4) the harm to real and potential markets for the original work. Because of the many variations, fair use cases are very individualized.  So you just never know.

At SCOPE, it is likely that any picture taken would be of the entire Antoine Rose piece, a work that was made for the purpose of selling.  That is also the Gallery’s purpose. But these photographs would probably not hurt sales.  In fact, the Gallery would find it beneficial as free advertising.  Unless the work is being blown up and reproduced for commercial purposes or where it would interfere with someone’s desire to buy the original, it would be hard to say that posting to social media isn’t fair use. But remember, this is a defense, so it only has value after you are asked to remove the work or are sued, which copyright holders can still do, regardless of whether we think it is fair use.

Art Contracts

Finally, we need to know if there are any rules at SCOPE Miami that would prohibit the visitors from taking pictures or if there is anything in the agreement between Emmanuel Fremin Gallery and Scope that has a bearing on this issue.  Interestingly, I was unable to find any readily available information on visitor photography at SCOPE. Assuming that is true, and it isn’t buried somewhere on the “interwebs,” then there isn’t anything preventing art patrons from taking photographs of Antoine Rose’s work at SCOPE. Art Basel on the other hand does have specific language on Intellectual Property in their Exhibitors Prospectus which defines the use of photography.  In short, they say that non-commercial photography is allowed, but that each gallery can make their own decision as to whether allow it at their booth, although Art Basel reserves the right to close off particular areas to photography.  Commercial photographers, on the other hand, must receive and pay for a special photographer pass.

From a practical perspective, Emmanuel Fremin Gallery would not want to inhibit anyone from taking innocent photos and posting them to social media.  Despite rules on some social networks that give those companies rights to your uploads, Antone or the gallery did not give those people the right beyond an upload so those rules may not apply.  At the same time, if a n came on commercial visitor arrived with a lighting rig , set up a tripod with a high res camera, they might think differently. Otherwise, all the photographs are actually helpful in letting people, especially those not able to attend the shows, know what is hot in the art world this year.  Just go to Instagram or Twitter and hit #ArtBasel and you’ll see what I mean.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

2 Comments

Click here to post a comment

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

Orangenius Has Launched!

Orangenius

.

The Latest From 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 […]

  • Videographers Must Obtain Music Licensing Rights

    Obtaining music licensing rights for videos is difficult but those that don't receive them are putting themselves and their customers at risk of a copyright infringement lawsuit. The post Videographers Must Obtain Music Licensing Rights appeared […]