Court Rules Photo of Memorial Violates Copyright 426
WhatDoIKnow sends in a story about an appeals court ruling in a singular case that might have the effect of narrowing "fair use" rights for transformative uses of artworks. "The sculptor who designed the Korean War memorial [in Washington DC] brought suit against the Postal Service after a photograph of his work was used on a postage stamp. Though first ruled protected by 'fair use,' on appeal the court ruled in favor (PDF) of the sculptor, Frank Gaylord, now 85."
Does this post violate copyright law? (Score:4, Interesting)
http://cloudking.com/artists/heather-stanfield/works/korean-war-memorial_large.jpg [cloudking.com]
Re:isn't the memorial already in the public domain (Score:3, Interesting)
It's called a "stamp" not a "photo"... (Score:5, Interesting)
It's okay to take a photo of a sculpture but it's not okay to use that photo to market your service, such as the way the USPS was trying to do with this stamp. This is part of the reason they make sure people are dead for a good long time before they honor them with a postage stamp.
Stupid bureaucrats (Score:2, Interesting)
FTA - noone actually ever paid the artist for the work, and I assume it wasn't stipulated in the rules of the competition (that the artist won) that the work, and any IP related to the work, would become public domain if he won.
Looks like a stupid oversight on behalf of the original organisers and the Postal Service for not enquiring about ownership.
Due diligence on the part of the Postal Service wouldn't have gone astray either.
I'm not sure where the outrage is coming from...
Re:Fair Use (Score:4, Interesting)
Notice in my original post, I never lambasted the judge... just the idea that a war memorial, in a public place, commissioned by the public (er... gov't in this case, but isn't that supposed to be the same here?)
Given those circumstances... shouldn't it be a reasonable assumption that the rights for the memorial also be placed in the public trust?
I agree... Bad contract from the start that let this slip through.
Wasn't sculpture made from the famous photo? (Score:3, Interesting)
Call me crazy, but wasn't the sculpture created from a photo? Hmmmm...
Re:It's called a "stamp" not a "photo"... (Score:4, Interesting)
Re:isn't the memorial already in the public domain (Score:4, Interesting)
I don't get it. A post is marked "Interesting" for asking a question that is already covered IN DETAIL in TFA!
You must be new here.
Business Opportunities (Score:3, Interesting)
Re:isn't the memorial already in the public domain (Score:3, Interesting)
I think it's more about whether you're making profit from the picture, and what about the image - precisely - you are monetizing.
If you sold your photo to a magazine for an iPhone-related article, you're in the clear because you are illustrating an existing product, and the value of the image lies in the skilful portrayal of the object in question.
If you sold the photo to Chinese bootleg manufacturers so they can replicate the UI, or started making money off your revolutionary new idea, which you call the "CoolPhone", and sending that photo to people as the appearance of an "early prototype CoolPhone", then you are likely infringing because you bring nothing to the table yourself, but rather are making money off of Apple's copyrighted product design.
Re:A slap in the face to all American veterans. (Score:3, Interesting)
Appeals court rulings are overturned frequently by supreme courts (google it) - if they hear the case (which the blatantly should). US postal service should be able to get there. I'm not worried but then again I'm not in the US. Why are there so many cases where there is a reversal is strange and can be infuriating.
At issue is what is transformative (Score:1, Interesting)
What about Warhol and the Cambells soup cans?
Warhol was able to make a work of art out of the Campbells soup cans, and ostensibly a stamp could be made out of Warhols work without Campbells permission, right? However just taking a photo of Warhols painting and then making a stamp out of that without Warhols permission would not be transformative, even though Warhol's paintings were a somewhat straightforward representation of the soup can. Right? No?
Bullshit (Score:2, Interesting)
This is just wrong.
It was commissioned by Congress. "Management of the memorial was turned over to the National Park Service, under its National Mall and Memorial Parks group. As with all National Park Service historic areas, the memorial was administratively listed on the National Register of Historic Places on the day of its dedication." (wikipedia)
I think, as the piece being commissioned by congress and the managing body by the US Park Service, the artist can go fuck himself. As an artist my self, Im possessive of my own works, but this is wrong. As a photographer, I am allowed to take someone else's work and duplicate the scene and photograph it. This is so long as I am not taking the image of their creation and claiming it to be my own. If I put the effort into it to duplicate it, and take the exact same photo, and can prove I did all that, Im in the clear. Taking a picture of a publicly commissioned art piece is my own work. Also, If I had art that was to be commissioned by congress, I wouldnt throw a hissy fit over what the government wanted to do. Theyre not even making money off it. What the hell is this guy's problem. He is known as the creator, that should be plenty enough.
Re:isn't the memorial already in the public domain (Score:2, Interesting)
The issue at hand is the use of the specific picture in a postage stamp. The postal service could have gotten around this issue by taking another picture at a similar/same angle using their own cameras in the snow. However, they did not seek proper usage for the underlying image on which the stamps are based.
Not all stuff done by the government is in the public domain - such as work by contractors, and other works where the government pays for services. In those cases, you have to especially careful to look into rights and ownership.
Public domain images may be public domain, but often times additional rights restrictions do exist based on their source. See, some NASA images.
Re:isn't the memorial already in the public domain (Score:1, Interesting)
They should return the sculpture to the sculptor!
Re:isn't the memorial already in the public domain (Score:1, Interesting)
Same with the European Parliament and the London Eye.
Re:isn't the memorial already in the public domain (Score:3, Interesting)
They should have tried different legal strategies (Score:5, Interesting)
IANAL, but I can see where fair use would be an appealing technique here, but the public trust might actually be the right way to argue this one. The argument to make would be that whoever signed the contract, and perhaps even the Congress, does not have the power to grant the artist a copyright good against the public in a case where, as in a monument, the work is commissioned for display at the seat of the federal government and for the public good. The monument is something created for and held in the public trust and as such, control over its use cannot be restricted to a single individual or corporation.
The idea of the public trust overriding corporate ownership came up about a hundred years ago when a Railroad Company was arguing an older (1869, IIRC) act of the (corrupt) Illinois legislature had successfully given the railroad company title to a square mile of the lakebed of Lake Michigan. The court held that if the title had been valid, it certainly didn't survive a repeal of the original act, and in any event the State couldn't really give up control of its harbor to a private entity because that would violate the public trust.
The environmental law folks pulled the public trust doctrine out of a drawer about 40 years ago, now, and it might have been useful here.
Re:isn't the memorial already in the public domain (Score:2, Interesting)
> They own the piece of art. They don't own the work.
> For example, if you buy one of two hundred prints of an artist's latest painting, you just own
> a print, but the artist retains ownership of the IP (the painting) and all copies (the print).
I once spoke to an artist in a market fair. She was selling paintings and prints of paintings.
I was thinking of buying a painting from her. I asked if I would have the right to make prints of the painting I bought. She said I wouldn't - the rights remained with her.
I did not buy her painting.
Why this attitude from artists? It's not like there's a finite supply of artistry within an artist and it dries up in a decade - its lasts a lifetime.
What next? I take pictures of my new kitchen for 'Better Homes and Gardens' and the cabinet makers sue me?
Re:isn't the memorial already in the public domain (Score:3, Interesting)
Re:isn't the memorial already in the public domain (Score:2, Interesting)
Re:isn't the memorial already in the public domain (Score:3, Interesting)
Unfortunately, it depends on the contract between the artist and the commissioner. It is becoming more and more common for the artist to retain the copyright. When an artist paints a picture and sells it, they often now explicitly put in the bill of sale that the copyright is not transferred, allowing them to sell prints of the painting even after they have sold the painting.
In another discussion group, we were discussing the incidents surrounding the Mackie dance sculptures on Broadway St. in Seattle. These are Dance Step diagrams in Bronze embedded in the sidewalk. Ten years ago a commercial photographer named Mike Hipple took a picture of someone dancing. A portion of one of the sculptures is visible in the photo. Mackie is suing for $60,000. Mackie has actually sued about photographs of these sculptures at least 30 times. As a result there have been some calls to reevaluate how public works of art are commissioned.
Unfortunately, transferring the copyright to the purchasing body (city, country, whatever) is not necessarily the answer. As shown by the Sept 11 incident with the I love new york logo. Milton Glasner created a modified version of the logo and was contacted by New Yorks legal department over infringement. The city backed down in the face of public opinion. Given that all cities/states/countries are feeling financial pressure, they will most likely want to grab licensing fees for any monuments that they own. The only solution may be an explicit grant to the public domain, but this may not be possible in practice, since everyone seem to want a cut of the action.
Re:isn't the memorial already in the public domain (Score:3, Interesting)
"Even so, it's insane."
What it is insane is people *allowing* for that.
"One of the worst is the photographer who did my sister's wedding in 1999, where she and her fiance signed a photographer on who not only expressly stated the above (quite normal)"
That's the problem. The proper answer is laugh at his face, go out the door and find another photographer.
Re:A slap in the face to all American veterans. (Score:3, Interesting)
Solution (Score:3, Interesting)
Re:isn't the memorial already in the public domain (Score:3, Interesting)
If I recall correctly, this has been applied to other things, and the decisions have gone both ways.
Not to drag a cars into this, but... :) If I recall correctly, the "Black Mustang Club" (BMC) wanted to publish a calendar of their members vehicles. Ford objected, and stopped the printings, through legal muscle. It made the press, and Ford softened their stance to be "You can't use the Ford logo".
If there's a buck to be made, someone will try to make it.
A judgment like this is extremely dangerous. Pretty much it leaves us at the point of anything that has been produced cannot be used in any reproduction which can make money.
If I take a photo of say the city lights of New York, and I have it printed as a calendar, poster, or postcard, I would then be liable to the City of New York, the owners of every building included, the manufacturers of the lights used, and countless others. It may seem silly, but that's the case here. I know buildings, to some degree, are exempt from this, but I believe there was a story a few years ago of someone photographing the Sears Tower, and they were forbidden from doing it because they didn't have permission of the building owners for reproduction rights.
I have some very interesting photos of places I've been. Maybe someday after I kick the bucket, one of my descendants will arrange them into a nice book, "Life In The Eyes Of JWSmythe". With a decision like this, owners of anything I've taken pictures of could come back looking for their cut. Luckily, I'll be rolling over in my grave at that point. :)
Re:isn't the memorial already in the public domain (Score:3, Interesting)
It wasn't the U.S. federal government who paid the start-up expenses for the USPS in this case.... it was the British government instead, when Benjamin Franklin became the first American postmaster-general in North America.
Otherwise, it has been a make a little lose a little proposition for the past nearly 300 years, and one of the early forms of revenue for the American Republic after the revolution of the 18th Century.
I'd say that those start-up costs have been amortized quite some time ago. How many 18th Century organizations are you familiar with that are still operational today?
Re:A slap in the face to all American veterans. (Score:3, Interesting)
Maybe he has the same credibility that we have when we start telling the world how to live. I mean, we often judge other systems as bug-fucking-crazy, then meddle with their systems. Sometimes, if meddling doesn't satisfy us, we invade, and completely break their systems. Credibility. Yeah, we have lots of it. We turn murderers and rapists out into the streets to strike again, but a "three time loser" can pull a life sentence for possessing one to many grams of lawn mower clippings. And, retarded teens can be hit with multi-million dollar settlements for sharing a couple songs. Fail to report your total earnings properly, and the IRS can make you homeless and destitute. Credibility, right?
Sorry - any outsider looking in can spot some of our very worst inconsistencies. We aren't all that credible ourselves.
Re:A slap in the face to all American veterans. (Score:1, Interesting)
I wholeheartedly agree with the sentiment of your smackdown of socsoc, but your comment had me thinking, and I think I disagree. I'm sure there is always some part of history that we won't understand for lack of having been there at the time. The goal ought to be to arrive at the closest possible approximation of what might have been.
Re:A slap in the face to all American veterans. (Score:3, Interesting)
Which would do precisely nothing in this case. Congress has explicit Constitutional authority to create copyright law. This isn't a constitutional question, but rather a question of how Congressional laws which are known to be constitutional are interpreted.
Buying art? Read the contract (Score:3, Interesting)
Well, it wasn't a work for hire. The artists still owns all the rights. If the US government wanted it differently, they should have written the contract with the artist to reflect that. The US taxpayers may own the memorial, but not the rights to reproduce the image for other purposes. The government screwed up on this one, but the artist is being a douche, too.
I ran into a related problem recently. My mom just died of pancreatic cancer, and we needed some photos blown up for the memorial. The best ones we had were from Olan Mills. I took them to Walgreens, they took one look at the Olan Mills logo in the bottom corner and said, "No dice. Olan Mills owns the rights to those photos, nobody can reproduce them without permission." So I tried Kinkos, with the same results. My mom is dead, but some damn portrait studio will own the rights to her image until 2065 because she got her picture taken there and didn't read the contract.
According to the helpful folks at Kinos, nearly all large portrait studios will try to do this to you, not just Olan Mills. They must have a large legal outreach team, too, to make sure every minimum wage copyshop and photohut employee in the world knows not to copy these photos.