The absolute best part of my job is problem solving. It’s especially fun because hardly a day goes by that I don’t encounter a person saying something like “oh, I have a quick question about…,” or “I wonder if its ok if I use this photo/text…” In very limited cases is the answer really quick and easy. If it were, I’d be out of work and so would a lot of other lawyers. So in this corner, we will try to address questions we’ve encountered or questions our blog readers pose about what they can and can’t do with the work/content of others (or any other random related question that may arise).
Here is this week’s question:
I am taking photos of a friend with various artworks she would like sell. Do we need permission from the artist who created the works to photograph and post the photos on the web?
The answer is – (sorry), it depends. First I need to make assumptions about the works that I hope apply. I am going to assume that the works were created in the U.S. by a U.S. citizen. I am also going to assume that the works were created after 1978. If either of those assumptions do not apply we need to go a different direction with the analysis. In the U.S. after 1978 it is crystal clear that the artist retains all copyrights in the works even after the physical works are sold/transferredunless the artist transferred the copyrights in writing to the owner of the physical work. In the absence of a written assignment from the artist, the artist will retain all copyrights, including the right to reproduce and display the works publicly. That said, as a practical matter, of course it is hard to sell something that you can’t show the public. Furthermore, many artists, particularly less well known artists, are unlikely to object to the reproduction of their works, since it generally lends to the artist’s notariety. While technically having an assignment or license to display the photos of the original work(s) is necessary, you may have a limited “fair use” defense if you can argue that your display/reproduction does not hinder the commercial value of the reproduction right owned by the artist. Many sites achieve this goal by blurring or inserting an electronic water mark over the works that make reproducing your digital image less commercially viable. I’d say you are better off getting permission (in writing), but as a practical matter, if permission can’t be obtained, the risk can be mitigated by: a) creating photos that are less likely to be themselves reproduced; b) and attributing the works in the photos properly to the artist. Of course, there may be additional details that might lead in a different direction, so obtaining legal counsel on these issues and to discuss the details is almost always worthwhile.