Is this scenario considered copyright infringement?

Question

I was taking some photos at a public market over the weekend. For my last photo, I stopped to make an image of a few vendors and the amazing neon light around their booths. One of the vendors was a photographer selling his photos. I was easily 20+ feet away and shooting a relatively wide angle and multiple exposures, as my goal was an HDR shot of the dynamic lighting. Anyway, on my last shutter click the photographer started shouting at me, “stop taking pictures of my photos!”, “that’s copyright infringement!”, “get the hell out of here!”, and finally my personal favorite, “I will have you thrown out of here!”.

Needless to say, everyone within earshot was shocked including me. I was so far away from this guy that his reaction made no sense. I can see his point if I was really close and focusing on one of his images, but I was after the overall scene… not trying to copy someone else's work. That’s just not me.

My questions is simple… at 20+ feet away, was I in the wrong? Is this copyright infringement?

I apologized to him three times while he kept going off on me. By the third apology my attitude was beginning to flip. I walked away without tossing gas onto the fire with a comment of my own.

update My location was the Pike Place Market in Seattle, WA. It's a famous landmark here in Seattle and there are probably more camera abound than actual shoppers.

Answer 1

No, that is not copyright infringement. As long as you have the right to take photos (e.g. public property in the US), you cannot infringe anybody's copyright merely by pressing a shutter.

Even if you copied his photo exactly with your camera, that is not copyright infringement. You need to use the copied image in an inappropriate manner for copyright infringement to occur.

Answer 2

I'm not a lawyer, but there is some legal gray area here. When you take a photograph of someone else's photographic work, you are making a reproduction, and that reproduction is covered by copyright law. And, since the law is involved, the details become complicated. If the photographs involved comprise a significant part of your image, you may get into making a fair use argument. There's an excellent page on this from the Standford University Libraries on Copyright & Fair Use.

It is my guess that in your particular case, the "de minimus" defense applies: the copyrighted material is so small and so insignificant to your work that fair use doesn't even come into the picture. But, unfortunately, even that has no definitive rules.

I think, in my non-lawyer mind, that there's also a significant difference between taking the pictures and doing something with them (like, making prints of "Photographer at Pike Place Market" and selling them without permission).

I also think, that if this approach were legally effective at preventing public photography, we'd see big, obvious copyrighted posters splashed around every public venue (I mean, beyond the advertisements that are already ubiquitous), and people demanding their share of every photo that contained their "intellectual property".

Answer 3

You don't say what part of the world you are in, but here in the UK if you are on public land then there is absolutely nothing anyone can do to stop you taking photos. Even the police have had their knuckles rapped over this, as section 44 of the Anti-terrorism act was deemed illegal by the EU.

If you are on private land however, this is another matter. The landowner may enact any rules regarding photography that they wish. Sometimes it's not easy to tell if you're on public or private land - an outdoor shopping complex for example would be private property even though its out in the open. So you have to stay aware of that.

So long as you were on public land, I'd say you're fine. I cannot speak for other parts of the world though...