Alley in Pisa, Italy

by Lars Kotthoff

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I know that it is illegal to take a photo of another photo, but does anybody know what the legal situation of selling a photo that includes a sculpture that it is in a public place?

Something like:

Formation

I'd like to interpret it as my own derivative work, and as it is taken in a public place, that no special permission is required under UK law; but would the situation change if I wanted to sell a copy to (say) the local pub?

I appreciate that jurisdictions will vary, and I'm primarily interested in works created within the EU, but if there are principles within the Berne Convention, that would be good to know for a worldwide audience

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Well, actually taking a photo of someone elses photo is not illegal, but selling it is. :) –  Guffa Oct 22 '10 at 8:45
    
@Guffa I'm not convinced; I suspect that you would only be pursued for prosecution is you tried to sell a photo of another photo without permission, though. –  Rowland Shaw Oct 22 '10 at 11:29
    
A law against photographing someone elses photos would contradict the freedom of photography. In most countries you may photograph anything that you can see as long as you are standing in a public place. The only exception is things like military installments. Consider if you would have to always make sure that you never ever have a photo displayed anywhere where you take a picture. Would this photo be illegal to take? guffa.com/Photo_result.asp?words=modell –  Guffa Oct 22 '10 at 15:54
    
@Guffa surely the difference is whether the photo is incidental, or whether it was intentionally copied -- similar to music playing whilst dictating a letter, vs. intentionally copying it. –  Rowland Shaw Oct 22 '10 at 19:47
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4 Answers 4

up vote 7 down vote accepted

I am no lawyer and do not claim to know about this however I can refer you to the UK Photographers Rights which is a great PDF summarising many of the points written by a lawyer.

In it is says:

It is not an infringement of copyright to take photographs of buildings, sculptures and works of artistic craftsmanship that are permanently situated in a public places

though I advise you read the whole PDF in context as there are many restrictions and times this does not apply. The PDF also highlights when there is a difference between commercial selling and private use so worth a read.

That said personally I agree with sebastien.b answer to get a release (which is also mentioned by Scott Kelby in his photography book) as you then know you are covered.

Remember as the PDF says If you require full legal advice please consult a lawyer.

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Actually that's not 100% accurate. There are cases where this is not true. For example if a building you take a picture of displaying a copyrighted work of art, you aren't allowed to photograph it for comercial use (the lightshow at the Eifle Tower is an example of this). –  Alan Oct 21 '10 at 21:34
    
There's a big distinction between "taking a photo" and "selling a photo". The question concerned the resale of said photos. –  ahockley Oct 21 '10 at 22:41
    
@Alan - You are correct in the PDF it explains about this under the section Restrictions on Photography in Public places. –  John Oct 22 '10 at 7:04
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@ahockley - Good point, my answer does not say about commercial selling. The PDF does mention commercial and non commercial use throughout so I think still a useful link and worth a read. –  John Oct 22 '10 at 7:09
    
I would have thought that copyright is or is not by the act of taking the photo. Sale of photos seems to be covered by other laws (Oddly, Data Protection where there is any personally identifiable information within it) and therefore affects the ability to sell without consent –  Rowland Shaw Oct 22 '10 at 11:34
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Check Publication of Photographs: Is A Release Required? I knew about model release forms for people, but to my surprise I recently realized one may need property release forms for buildings too. Check the "Photographs of Property" section.

Although property does not enjoy a right to privacy or publicity that there are other bodies of the law that might prohibit or restrict the unauthorized use of a photograph containing property. These bodies of law may include among others contract, trademark, unfair competition, copyright and trespass law. The guiding principle, that of course is muddled with exceptions, is that as long as a photograph of private property is taken while the photographer is on public property or on property that is open to the public then it is permissible to publish that photograph without permission from the owner of the property. However, there are exceptions where it may be necessary or advisable to obtain permission from the owner of the property. These exceptions may include among others, [...] (cont.)

Update: Top 10 Misconceptions about Photography and the Law. #5. You need a property release to use a photograph of a house for a commercial use. Apparently not. As I said. Different opinions.

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Who would be the person to approach in the instance of public art? I'm mostly concerned with works that are on council land, so would it be the council, the artist or even the developer who installed it? –  Rowland Shaw Oct 22 '10 at 8:23
    
Actually I shot a public art installation a few months ago, sculptures of Seward Johnson that are on display in Albany: barre.me/2010/06/23/seward-johnson-sculpture-walking-tour I contacted both the foundation representing the artist, and the non-profit organization that made it happen in the city, just to cover more angles. A new installation rotates every year, a friend of mine had shot the one in 2009, and he had contacted the artist only. –  sebastien.b Oct 22 '10 at 13:39
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An example:

Selling shots of Eiffel Tower by day is not forbidden. It is in public domain.

Selling shots of Eiffel Tower by night is submitted to authorization of the company managing Eiffel Tower. Simply because light effects are copyrighted.

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I had heard that the light show on the Eiffel Tower was deemed a unique work, and protected by copyright, and it was partly this that prompted me to ask the question here. –  Rowland Shaw Oct 22 '10 at 11:28
    
Yes it is true, it's a pretty infamous example (I'm French, and not so proud about this restriction) –  sebastien.b Oct 22 '10 at 13:41
    
The same restrictions are used in the UK by the National Trust, for example. You can't sell shots of any of their stuff. –  philw Oct 22 '10 at 19:37
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I learned that the answer is no, not if the sculpture is considered to be materially part of someone's brand and you're in the US.

The issue for me was some pictures of buildings on UCLA's campus. One of the faculty liked them and wanted me to give them to him for free so he could print them; I refused, and so he referred their copyright office to me. The office informed me that the buildings in question, since they had been used in letterhead and the like, were considered part of the university 'brand', and so selling photos of them would be considered to be material infringement on their copyright.

I recently read an article suggesting that such a thing was happening with Stonehenge at the moment.

Now, it may be that a lawyer will tell you that they were full of it. I just decided that fighting that fight wasn't worth it, so I didn't sell the photos. And I don't talk to that faculty member anymore.

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My interest primarily focuses on works of art within public spaces, like the example (which is actually in the middle of a roundabout) –  Rowland Shaw Oct 22 '10 at 11:52
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