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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.


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