copyright question

[stuck]

I suspect the answer is, "Ask a lawyer", but I'll ask here anyway...

If I take a picture of say a sculpture that's on public display in a garden, to which I've paid to enter, then as I took the photo, I own the copyright of that image correct? So far so simple?

If though I wanted then to make my photo into a greeting card and sell those cards, would I have first have to get permission of the artist that created the sculpture?

[DanK]

I'm not a lawyer, but I ran into the same issue. I took a photo of a sculpture at the DeCordova Museum and wanted to exhibit prints for sale. I checked with the Museum. Their policy was that I was not allowed to use photos of any sculptures on display without permission of the artist. In that case, the artist cheerfully gave me permission. So I would check with whoever you paid for admission, as they may have binding restrictions that aren't legally imposed on truly public spaces.

[pendennis]

I'm not a lawyer, haven't played one on TV, and didn't stay at a Holiday Express Inn last night -

The instant you release the shutter, you own the copyright of the image. To expressly enforce the copyright, you can register your photo with the U.S. copyright folks.

As to the item you photographed, there are a couple of things in play. Did the owner of the sculpture release photo rights of the image when he/she agreed to display said sculpture? Are there any restrictions set by the operators of the display? i.e., did they set any specific restrictions as to taking photographs? Were any signs prohibiting photographs in plain sight? It also may involve whether the location is a public area, and the display folks had a permit to charge admission.

You may be worrying over nothing. Unless you have a very large mailing list, I doubt that anyone who gets your greeting card will "rat you out" to the folks having the display, or to the the original artist.

Your first sentence sums it up nicely - When in doubt ask a lawyer who has knowledge of copyright laws.

[stuck]

The place where I took the photo is a local garden that's open to the paying public at certain times of the year, i.e it's a small operation. Given that I doubt they've ever been asked about copyright but it seems sensible to see what they say.

I might be being a bit cautious but while I won't make any money out of any cards created from my photo the hope is that a charity with a national reach will, so again it does seem prudent to try to contact the person that created the sculpture.

Thank you both for your thoughts.

[Geoff F]

In the UK the National Trust caused a stir by banning photographers from photographing landscapes, shot from their premises, as well as their gardens.

I am not sure what the final outcome was but their argument was that professional photographers were making a lot of money from selling these prints so the National Trust should have a share of the profits. But the way the prohibition notices were worded also included personal use photographs as well.

Incidentally, I remember someone I knew who visited a US lawyer and he said the conversation went along the lines of:

'How much do you charge?'
'I will answer 3 questions for $100'
'Isn't that expensive?'
'I don't think so. What is your third question?'

[Manfred M]

There isn't enough information here for even a intellectual property lawyer to answer your question.

Copyright is not forever, so if the copyright has expired (i.e. the work is in the public domain) and the owner of the statue has not put any conditions on use of photographs taken on the property, then there is no issue at all.

If the copyright has not expired (which happens many decades after the death of the sculptor), you need the copyright owner's permission to make a derivative work (which your greeting card is). This could involve a fee for every reproduction or a blanket licence fee. If the shot is a more general shot of the property and the sculpture is not the main subject, "Right of Panorama" might apply and no permission might be required, again subject to any conditions that the sculpture's owner might have put on it.

Even if the garden's owner lets you photograph the sculpture, the owner likely does not own the copyright and cannot give permission to reproduce the work, unless the work is in the public domain.

That covers some (but not all) of the legal questions.

There are also the practical and ethical questions. Is the copyright owner going to bother to chase the photographer down for violating the copyright? If someone does try to enforce an invalid copyright, do you have the time and money to defend yourself under the legal system?

Even consulting a lawyer may not be enough; they can only give you a "legal opinion", but that opinion could still be contested through the courts...

[stuck]

In the UK the National Trust caused a stir by banning photographers from photographing landscapes, shot from their premises, as well as their gardens...

That's not quite right, photography for commercial purposes requires permission from the NT but Joe Public is allowed to take photos for 'personal use'. The NT policy on photographic access is here:
https://www.nationaltrustimages.org....raphic-access/

[stuck]

...if the copyright has expired...

It won't have.

..you need the copyright owner's permission to make a derivative work (which your greeting card is)...

I had a feeling that was the case, which is why I asked the question. I will contact the relevant people. I'll be surprised if their response is anything other than, "For charity? No problem."

[Manfred M]

It won't have.

I had a feeling that was the case, which is why I asked the question. I will contact the relevant people. I'll be surprised if their response is anything other than, "For charity? No problem."

That might not be possible. The contracts that artists have with agencies often gives those exclusivity for sales by their clients. Even if they are okay with what you ask, there may be significant fees to the agent involved, so don't be surprised if the answer is "no" or "it can't be done".

[pnodrog]

As I understand it, provided it was permissible for you to take the photograph you own the copyright. However owning the copyright does not confer permission to reproduce someone else's artwork. Many Museums and Art Galleries are now far more lenient regarding photography than they have been in the past. However usually there are notices up stressing that any photographs taken are for personal (and sometimes educational) use only and must not to be used commercially.

[stuck]

That might not be possible...

I'll be very surprised if there's an agency involved. I'm confident it's just a local artist displaying their work in a local garden.

...usually there are notices up stressing that any photographs taken are for personal (and sometimes educational) use only and must not to be used commercially.

There were no such notices, the location is a very small operation. I doubt anybody will have ever asked them the question I will ask.

Thanks again everyone.

[revi]

Even for charity use, you may expect "which charity" as a first reply, and you probably will have to credit the artist (*)
(and as that means their name gets linked to the charity, the permission may depend on which charity wants to publish).

(* : at least in France, that's a legal obligation in any case, even if the artist forgets to ask for it).

[stuck]

...you probably will have to credit the artist...

I now have permission from the artist, providing they are credited. I await feedback from the charity as to whether or not they wish to proceed.

Thanks again to all who have offered advice, it has been helpful.

[DanK]

Glad to hear that it worked out. That's what happened to me the one time I ran into this issue. The artist wrote back with his permission and 'I hope you sell a bundle.' Sad to say, I didn't.

[William W]

I've followed this conversation from the time of the Opening Post - my comment, which I chose not to make back in September 2023, is that your question is about the Right to Publish (or reproduce) an Image and not about the Copyright of the Image.

Mentioned primarily because the title of the thread is "copyright question" and many photographers get these two rights confused.

In mostly all situations, in mostly all countries, the Photographer intrinsically has Copyright once the shutter is released, however, the Right to Publish (or reproduce) that image has, in part to do with the Photographer's Copyright of the Image, but the Copyright of the Image is not the only consideration and it is unwise to consider it as such.

I believe the OP was not confusing these two Rights - hence the well structured question - I reiterate there is much confusion mixing up copyright and publication right and the title of the thread is the reason for this comment.

I hope the charity proceeds with the idea and they reap benefit.

WW