You are here:

1st Amendment and Free Speech/Copy Right materials and personal release in ART

Advertisement


Question
Mr. Troy,
I am a photographer who does both find art and portraits. First when it comes to portraits I always get a release from all my clients who let me use their image to advertise my serves, have it be web, flyers, business cards, ext. When it comes to my "street photography" art,I do not, side note, (for my studio or more planed art with models whom I pay, I sometimes would also pay them a percentage of sales, depending on out agreement and the project). When I comes to "street photography", it's from my understand - what I was taught in college - the photographer does not need the permission of the person photograph if it is art. Like in Nussenzweig v. DiCorcia, and most contest state that they do not need permission of person photograph. However I recently have been doing some reading that differs. Does the law differ state to state, of where the photograph was produce or shown.

Similarly, something that never accord to me I have many artistic photographs, not for commercial uses, that contain copyrighted objects in them, magazines, art on alls in backgrounds, beverages, cars, ext. My understand to this, was if it was not intended for commercial use, i.e life style stock, ext. And is part of the art, it can hung in a gallery, be printed and sold in a book fair game. But now I am reading differently. And I am getting nerves, because I do not have the funds to get permission. Is there any truth to this. I can think of many times I've gone into small galleries to big museums and seen photographs and painting containing copyrighter martial, most famously Andy Warhol, though thats probably not the best example because the images were altered. Any accurate information you can give on both accounts would be great.

Answer
Hello,

You raise some good questions.  At the outset, I have to say that I cannot provide legal advice in this forum.  I am happy to share my thoughts with you, but before acting on anything I say here, I strongly recommend consulting with an attorney who is familiar with the laws and practices of your local jurisdiction.

Under federal copyright law, the person creating the work owns the copyright.  So if you take a photo, you own the copyright to that work.  You may use it as you wish.  You do not need the permission of the subjects.  And the subject may not make copies of any photos that you provided to them, unless the two of you agree via a contact that they have the right to do so, or that you transfer copyright to them.

Outside of copyright law, however, there are various rights to privacy and publicity which can limit the commercial use of another person's likeness.  Generally speaking, these rights are generally restricted to commercial use and vary from State to State.  The exact definition of "commercial use" can be rather vague.  But generally, if you wanted to display a photo in an art show or museum, that would usually not be considered commercial use.  If you wanted to use the photo in an advertisement that would.  But there are often large gray areas in the middle where commercial use it a matter of debate.  Most photographers will err on the side of protecting themselves from liability by attempting to get permission, even if they likely could win in court without the permission.  

You also raise the issue of photographing a copyrighted work.  A photograph can violate copyright, but very often there is a "fair use" exception.  Commercial use is one factor to be considered, but not definitive.  For example, if I took pictures of every page of a book and posted them online (not for sale), that would almost certainly be found to violate the book's copyright.  Even if I just took the photos for personal use, that would still be a violation, although harder to be discovered.  On the other hand, if I took a photo of a person holding the book open to a certain page, even if I could read every word on the open pages, and started selling that photo, that would likely be considered fair use, since I was only using a portion of the work, and it would likely have no negative impact on the author's ability to profit from the copyright.  

Other factors to be considered in fair use are whether the new work is merely derivative or transformative.  If I took a picture of a painting, and sold it, that would likely be a violation as commercial use of a derivative work.  If I took a picture of a crowd of people in a museum, even if the painting was fully visible in the picture, it would probably be considered fair use because the use of it in combination with the other parts of the picture makes it "transformative."  But again, applying the criteria of fair use can lead to gray areas where an outcome is subject to the opinions and view of the fact finder.  Therefore, again, many photographers may be conservative in how they approach the use of such photos.

I know Wikipedia is not always the best source of information, but these articles are pretty good, and informative on some of the issues I have discussed here:

http://en.wikipedia.org/wiki/Appropriation_%28art%29

http://en.wikipedia.org/wiki/Fair_use

Some of the lawsuits against Andy Warhol, whom you mentioned in your question, are discussed in the first link.

I hope this helps!
- Mike  

1st Amendment and Free Speech

All Answers


Answers by Expert:


Ask Experts

Volunteer


Michael Troy

Expertise

I will answer general questions regarding freedom of speech, petition, or religion. My specialty is in cases involving public employment or education, as well as issues related to campaign finance. I can`t give specific legal advice involving specific cases you might have.

Experience

As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious content. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.

I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process and engage in campaign related speech.

Organizations
Former Attorney for Center for Individual Rights.

Publications
Washington Post
Washington Times

Education/Credentials
J.D. from Univ. of Michigan Law School

Awards and Honors
Truman Scholar

©2016 About.com. All rights reserved.