publication of the International Sculpture Center
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of Public Artwork by Anish Kapoor and
Christo & Jeanne-Claude: Copyright Infringement?
by Daniel Grant
Over the past 30-plus
years of the public art movement, artworks in public settings have added
beauty, interest and, in some instances, controversy to the civic arena.
For photographers and plein air painters, however, they may also be adding
the threat of a lawsuit for copyright infringement. It is no violation
of law for an artist to paint or photograph a public park, but it may
become so if a copyrighted work of art is sited in that park.
This claim has been made recently by representatives of two artists of
public works, Anish Kapoor, whose Cloud Gate was installed in the fall
of 2004 in Chicagos Millennium Park, and Christo and Jeanne-Claude,
whose Gates project was on view for 16 days in New Yorks
Central Park. In Chicago, sports photojournalist Warren Wimmer got a quick
course in copyright law when he set up his tripod to take a picture of
Kapoors work only to be stopped by security guards demanding that
he obtain a license, costing $350. I thought they were kidding me,
Wimmer said. You cant copyright the park. But they werent
kidding, so I handled it the Chicago wayI gave them $20 to go away
for a while. The lawyer for Christo and Jeanne-Claude, Scott Hodes,
is tackling the problem of unwarranted use of the images in a more formal
way, sending cease-and-desist letters to photographers planning to sell
their pictures. The letter states, in part: Christo is the sole
and exclusive owner of the copyright in The Gates, and various derivative
and related works of authorship, including multiple U.S. Copyright Registrations
relating to those works. Accordingly, you may use your photographs in
a 'fair use' manner, that is, in the context of scholarship, criticism,
journalism or parody. Many photographs of The Gates, for example, have
appeared and will appear in magazines and newspapers as part of legitimate
newsworthy coverage about The Gates
You may not, however, sell the
photographs in a non 'fair-use' manner, or commercially exploit the work
of art without the express written permission of Christo, nor may you
claim a 'copyright' in photographs of this protected work. In general,
Christo has authorized me to respectfully deny any grant of permission
to use his copyright in The Gates for any purpose other than a 'fair use.'
Any unauthorized use of the copyrights in The Gates may result in Christos
enforcement of his rights in a court of law."
"We hope that you can appreciate Christo and Jeanne-Claudes
position with respect to the unauthorized use of the copyrights relating
to The Gates. Although the artists are delighted that you have taken an
interest in The Gates, they must nevertheless strive to ensure that this
work of art, and all intellectual accompanying rights, are protected to
the full extent of the law."
Unlike many lawyers warning letters, this one has a softer tone,
but it claims as a matter of law what may be a somewhat gray area. Claims
of copyright infringement are specific to each case. Is the photograph
or painting a landscape in which there is an artwork or simply the artwork
with a tree or building nearby? Was the photograph taken purely for personal
use or to sell? What may be taking place is an expanded reading of copyright
law or a misreading of it. Artists are asserting proprietary rights
that they would not have done 25 years ago, says Tad Crawford, author
of Legal Guide for the Visual Artist. Its an outgrowth of
the artists right movement.
Certainly, the federal copyright law gives the copyright holderthe
artistthe exclusive right to display, sell, and make copies of his
or her own work, as well as to produce derivative works. A photograph
of an artwork is a derivative work, reproducing a three-dimensional public
artwork in a two-dimensional form, which technically makes an unauthorized
photograph an act of infringement. Selling the photograph, or copies of
it, only continues that infringement. Placing a work of art in the public
realm doesnt strip the work of its copyright. There is no
public presence exception to the copyright law, said John Koegel,
a New York intellectual property lawyer. It doesnt put the
work in the public domain.
Publicly accessible architectural works, such as a uniquely designed office
building, may also be copyrighted, prohibiting artists and photographers
from making or taking pictures of them. In addition, distinguishable from
copyright protection is the control that museums and others exercise over
their premisesitself a matter of real property lawentitling
them to limit photographs of even public domain works.
However, Koegel notes the fact that the work is in a public setting opens
the door to what is called the fair use exception to the copyright law.
One element of fair use is the nature of that use. An individual
who takes a picture of [a work] to have a record of it in his home would
not be a condemned use, he maintains. Making a poster to sell
is less favored. Since Wimmers career is sports, rather than
fine art, photographyIm not a Chicago scenery photographer;
I just planned to put the photograph in my basementhis infringement
of the law would not likely be prosecuted.
Were a painter to have set up an easel in Millennium Park, the artist
creating a picture of a public work in a park, the likelihood of a successful
prosecution again would be in doubt, even if the painting were intended
to be sold, because of the creative and artistic elements that the painter
would be bringing to the image. Again, there is no absolute measure of
when infringement ends and a new artistic work begins. The line
moves, depending on how much creativity can be found in the new work,
Koegel said. A photograph is less transformative than a painting.
The fair use exception to the copyright law allows for use of a photograph
of an artwork for educational, critical, scholarly, satirical, or newsworthy
purposesprotecting schools and publications from infringement claims,
for instanceand also requires a degree of economic injury
to the copyright holder. Would a painting or photograph of a work of art
lessen the copyright holders ability to profit from the sale of
the copies of the piece? Christo and Jeanne-Claude have assigned the licensing
rights to reproduce photographic images and sell signed posters of The
Gates to Nurture New Yorks Nature as a fundraising aid to this nonprofit
urban ecology organization, and unauthorized knock-offs could cut into
Potentially weakening Christos case against infringers is the fact
that The Gates was not a unitary piece like Kapoors Cloud Gate but
an environmental project, with 7,500 structures and fabric panels spread
out over acres of park land. A photograph or painting could capture the
whole of Cloud Gate, except for its back side, while only an aerial view
could take in the entirety of The Gates. The fair use exception refers
to the amount and substantiality of infringement of the copyrighted
work, making a ground-level view of the project technically a fractional
use. Hodes, however, has taken an aggressive approach, claiming that you
can copyright an entire project even if no one image can encompass it.
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