How Stupid Is This! – Sculpture By The Sea!

10 02 2010

I received this rather official notice in my email about some sort of apparent breach of copyright regarding some of my photos.  At first I figured somebody must have downloaded and used my photos without my permission.  Then as I started reading the details, I couldn’t believe what I was reading.

According to the idiots at Sculpture By The Sea,  I am in breach of copyright by taking photos of their sculptures!!!  They have demanded I take them down until I get permission by the artist to use them.   Have you heard anything more stupid or idiotic in your entire life.   If they want to go and start trying to enforce this with everybody who has published photos of their exhibition, then they must have way too much time on their hands.  I just searched flickr and there are over 28,o00 photos on their from Sculpture By The Sea.

So I thought I would do a bit of research to understand the law around this and it also appears that they don’t have a leg to stand on.  Here’s an extract from Andrew Neamoth’s excellent 4020 site which clearly explains photographers legal rights in NSW.

Copyright?

Alongside ignorance about the Privacy Act(s), one of the commonest misconceptions about photography is that it can be prevented “due to copyright”. This is incorrect — no part of the Copyright Act prohibits any kind photography! Copyright only applies to the published duplication of original works, such as books, paintings, dramatic works, prints, drawings, motion pictures, DVDs, audio recordings etc.

In Australia still-photographs of 3D objects such as performances, buildings, statues or interior spaces (and the people in them), generally cannot infringe copyright, as one-off images cannot reproduce a substantial enough portion of the original work. The only way to infringe copyright in these cases is to create a sufficiently similar 3D copy, or with respect to dramatic works, lengthy video recording (eg. see the “Choreography G072” information sheet on the ACC website.) The same kind of thing applies to the “performers’ rights” of actors or musicians during a performance — it is almost impossible to infringe these by merely taking an occasional still photograph. (FWIW many thespians and producers disagree with me on this point — see the Aug 2007 discussion at Theatre Australia. All I can say is: download and read the relevant ACC information sheets!)

All these principles have been adopted by the Commonwealth Copyright Act 1968. See for example Part III — Division 7 “Acts not constituting infringements of copyright in artistic works”, especially Section 66:

The copyright in a building or a model of a building is not infringed by the making of a painting, drawing, engraving or photograph of the building or model or by the inclusion of the building or model in a cinematograph film or in a television broadcast.

Thus due to our s.66 exemption, the internationally notorious SABAM Atomium building copyright heist would be very difficult to mount here. Unfortunately the Sydney Opera House Trust hasn’t got the idea yet — see Peter Black’s June 2007 analysis of (ab)using intellectual property law to restrict SOH photographs.

Furthermore according to s65 of the Act, a similar kind of exemption applies to photography in publicly accessible places where sculptures or other copyrightable “works” are displayed.

So when a Sydney Opera House guide or a Paddys Markets Wigs-stall owner waves their arms and rushes towards you yelling: “You can’t take photographs because of Copyright!” — smile and shake your head, because clearly they have no idea what they’re talking about :?)


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37 responses

10 02 2010
Roger Barnes

I’ve long been a fan of Andrew’s site (and his legal rights brochure), and agree that you probably are not in violation of copyright here (though I’m not at all qualified to make a call). I’m personally not a huge fan of photographing other people’s art because I don’t feel it’s sufficiently my own, but that’s a matter of opinion, and totally appreciate what you bring to the images you create irrespective of the subject. Especially so, as I’m a Sydneysider, urban explorer, landscape photographer and budding strobist/light painter.

Do let us know how this pans out. Typically redbubble give you an avenue to disagree and keep the image published, but they might be in more of a “rock and a hard place” situation on this one. I had multiple issues on redbubble with a night shot of the Eiffel Tower (one of my best photos ever) and gave up.

Hopefully you won’t have to “lawyer up”.

– Rog
PS Looking forward to your talk at NCP next week🙂

10 02 2010
Roger Barnes

PPS Maybe Andrew Neamoth would add his interpretation to this specific situation. Unfortunately, the first thing I googled for turned up this, which is news to me:
http://www.copyright.org.au/information/cit028/wp0316

10 02 2010
brentbat

Hey Roger

I have actually sent a note to Andrew to ask him for his views on this. It would be interesting to understand the letter of the law first of all.

Quite separately from this though…. I mean how bored must the folks at Sculpture By The Sea be….. Perhaps they didn’t make any sales so they are looking for something else to do to justify their existence.

I’ll let you know what I hear regarding this.

Thought you all might be kind of amused by it though.
Brent

10 02 2010
Kajo

The reason is, you are using the photo commercially and that usually causes big issues (without having paid for licenses).
You even need a commercial license when you take photos in a National Park, go figure.

Since this image is for sale on redbubble, they get shitty.
Flickr won’t bother anyone.

10 02 2010
Peter
10 02 2010
Ilya Genkin

Hi Brent,
I had a lot of discussions about similar subject with a few photo agencies in US regarding Sydney Opera House. They were so stuck to their own rules so even didn’t want to listen. Even after I contacted Sydney Opera House Trust and got *official* permission and provided the “Commonwealth Copyright Act 1968” the libraries didn’t accept the files.

Terrible, but the only thing I can take a picture of without a Model release, a property release, or any other release, is the inside of my lens cap. Providing of course it doesn’t contain any logos or copy protected something or another.

10 02 2010
brentbat

I have immediately disabled the sale of images on Redbubble until I get an understanding of my position. If it truly is a breach of copyright I will reluctantly take it down from Redbubble, but I’d like to think that this is some bureaucrat being bored.

Whenever I take an image at sculpture by the sea, if I think it’s a good image (as was one of the three in question), I actually look up the artists details and send a copy to them.

10 02 2010
brentbat

Hey Peter

That case in the USA is amazing. I feel so sorry for the poor photographer. Sounds like the artist enjoys fighting in court more than producing art.

In our case in NSW this case wouldn’t hold ground as the law is quite clear that it is OK to photograph permanent sculptures in a public place…. I just need to understand the law around photographing temporary sculptures in a public place

Here’s the relevant section
http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s65.html

Brent

10 02 2010
brentbat

This whole discussion over copyright has sure been an interesting eye opener. Maybe at Next Year’s Sculpture By The Sea I’ll launch a protest and hand out flyers to the public as they go through…”Warning, don’t photograph the sculptures”.
🙂

BP

10 02 2010
Kajo

Have you guys ever tried to submit an image to Getty Images? It is a pain mostly due to legal issues.
For example: It is not allowed to commercially market a picture of the Eiffel Tower when it is lit at night. There are huge fines, if you are found out.
During the day it is no worries, only at night when the lights are on it becomes an issue. Now that is crazy if you ask me🙂

10 02 2010
Ilya Genkin

Yeap. Eiffel Tower at night, The Gherkin building in London, Uluru (sic!), Shrine of Remembrance in Melbourne, Lone Cypress (it’s a TREE!!!) at Pebble Beach in US, Towers in Seattle and Toronto. I can go on. The list is really long. They all protected by copyright and you cannot sell photos without permissions.

10 02 2010
André

Brent, problem with your photo is that it is TOO good and very unique!! They figured you would have no problems selling prints, hence, as Kajo points out, that’s the bit they are really having problems with, ie you benefiting from their artwork.

Claiming copyright is likely the wrong approach as you point out but that’s probably the first thing they came up with.

Let us know what you find out from Andrew.

11 02 2010
Tim Donnelly

Im a little stunned I must say. Im with you Brent in how much time do they want to waste protecting their sculpture from a photo….I would never have thought. Will be interesting to see how it pans out. Best of luck

11 02 2010
Steve Arnold

Sorry to hear about this Brent, when people just want to it really doesn’t matter if they are right or wrong, they still have the power to be a pain in the a**.

I don’t know many of the real answers to copyright issues, but I listen to a lot of american photography podcasts and over there it seems that there is a difference between selling an image as art and using an image for commercial purposes. As you are just selling this as a print, I would have assumed it was fair game. Not sure how that exact rule translates over here in Oz though.

11 02 2010
Rog

I don’t blame them (whether it’s on behalf of the artists, or the organisers driving it) for pursuing copyright infringement within the law. Even if I disagree with aspects of it, I’d like to think that my own work has some protections and remedies available too. This is the case whether I sell work or not, or whether the another person has potential to gain from it or not. The whole public/temporary thing does muddy the water significantly.

Putting myself in their shoes, I might expect at least some attribution (not sure if you did this). Irrespective of the law, there’s no arguing that the image contains at least some of their creative contribution. Perhaps I’m a hypocrite, my depublished photo of the Eiffel Tower by night includes the creative contribution of the builder and lighting designer and I didn’t credit them. The Copyright law that got attached to this permanent public installation really ticked me off though.

I wouldn’t be surprised if the Sculpture crowd go after the stuff on flickr too, it might just be harder to tackle, and of course, being less commercial in nature, it’s also less damaging (potentially) to the image of the copyright holder.

A final word (for now), be extremely cautious of your commenters (including me). There are a lot of opinions and legal platitudes being bandied around as fact, and people regularly confuse licensing, commercial/fair use, copyright, privacy, permits, trademarks, shooting vs publishing vs selling and it pays to be extremely clear on the distinction. Many people like to lump the best bits together as their god-given right🙂

11 02 2010
Brad McEvoy

I too have received the same email from Redbubble/Sculpture By The Sea for a number of my photos and have since removed them. I have the same photos on flickr but have had nothing said about them. As others have said maybe it is the potential to earn money from Redbubble sales. I too thought anything in a public area was fair game for photography. I have gone away and read some copy right article and “Temporary public art” does seem to be a grey area. Agreed someone must have a lot of time on their hands to be chasing any photo that pops up for sale as when I went this year it was like a zoo the amount of photographers there. Any way all it has done to me is made me think twice on whether could I be bother going next year.

11 02 2010
Gordo

I wouldn’t be surprised if they post security at the next SBTS at night to chase any and all photographers away. I am interested in the outcome though. Hope it turns out in your favour.

11 02 2010
shannon

Hey Brent, i totally agree with you on this issue,What would be interesting is to see how the artists themselves feel about the whole thing i.e are they concerned about it in a photographic way or are they just happy that someone has a fantastic photo of their work hanging in their lounge room.
It would certainly be an interesting question to put to the artists I think.

12 02 2010
Allan

Hi Brent, yes… this is so stupid, is like the manufacture of a boat came and tell the artist that is sculpture is a copyright infraction… if this tendency continues in the future you can not take a picture of a street because there are cars, people and houses sooo many copyrights….

12 02 2010
William Ophuis

haha thats Rediculous.

13 02 2010
mattlauder

Your right Brent.. someone has too much time on their hands. A lot of these people need to understand that it is use photographers who promote these events with our images. Places like the NSW Tourism buy my images of the Opera House and city to use in their promotional material. Imagine if none of us had images of these locations if we followed their poor understanding of the law.

Does this also extent to TV stations videoing the exhibition and putting it on the news and TV without permission from the artist.

Maybe their problem is someone profiting from an image of another persons art work. Almost like a photo taken of someones photo and then that’s for sale ? I think Red Bubble have made their email to you too open and it needed to be refined to exactly what is their problem with the image. I hope Red Bubble also contacts all the people who have images of Uluru and Kata Tjuta and asks them for evidence of their written permission to display and sell those images. Now that is a more valid point than worrying about Sculpture by the Sea.

13 02 2010
Doug Turney

“Almost like a photo taken of someones photo and then that’s for sale ?” That I could understand as a breach of copyright, but Brent didn’t do that. He created his own artwork. He added value to the original artwork and thus as a result created a new piece of art.

13 02 2010
spoolphotography

One would think you are actually promoting the Sculptures By The Sea to an extent. Yet they hunt you down for copyright truly amazing. So much is off limits these days, makes you wonder where will it end …

Oh yeah, made your wife’s salmon recipe tonight again … yumo🙂

14 02 2010
mervfrench

I can understand the artist not wanting a image of his sculpture for sale or sold ( I don’t have a problem with that ) but shooting them and putting them up for all to see must be great publicity for the artist’s work.

This whole photography shooting here and not allowed shot here etc. is fast becoming a nightmare.

I’d like your wife’s salmon recipe , sounds good.

19 02 2010
photographybyodille

You are quite correct. I studied 2 units of copyright law when completing a BA in Journalism. Any work on display in a public place can be photographed by anyone who happens to mosey along.
If you were using the photo as you described in your original posy=t you could possibly (only possibly) infringe copyright but it would have to be very close to the original
There’s a very different attitude by Sculpture by the Sea at Currumbin in Qld, they encourage people to take photos of the ‘installations’.

19 02 2010
brentbat

Hey Photographybyodille

Thanks for your note… as somebody who has studied copyright law, let me ask you this.

As SBTS is not a permanent exhibition, it seems to fall into the grey area of “temporary art installations”.

However I’ve heard that you can’t really breach copyright of sculptures via a 2d representation (photo). Do you have a view on that?

Brent

20 02 2010
photographybyodille

I think they are ‘trying it on’ that you are making a copy for profit, but a photo can never be a copy of a sculpture, and you are not trying to pass off the sculpture as your own work. Nor, IMHO, are you cutting into their profit margin. From the prices I saw at the Currumbin SBTS, most people could not afford one of the installations so there is no way that angle would swing a conviction.

21 02 2010
DCfromUSA

Illegitimi non carborundum.

23 02 2010
photographybyodille

Brent

here is a good resource for photographer’s rights in NSW (and Australia generally) http://www.4020.net/words/photorights.php

There is a downloadable summary sheet of your rights that you can carry with you, too.

23 02 2010
Rog

That’s the site Brent is quoting from😉

26 02 2010
truenorthmark

Good article Brent and my call on this subject is ‘extremely short sighted to challenge you on this’! Take my situation for example. In my opinion, your shots of these sculptures are the best night shots I have seen anywhere and therefore the shots have made me not only aware of your talent, but of the subject matter.

I live in Perth and had no idea they existed…now I do know they are there and I for sure would love to go and have a crack at them…more exposure for the artists and out the word goes.

Social media is for sure the way to get things out there in these modern times and anyone who doesn’t embrace it will be left behind for sure!

Great shots mate and don’t be put off by these short sighted fools!

27 02 2010
Brent Pearson

Hey Mark thanks for your note… I agree totally with your sentiments.

Not sure if you are aware, but Sculpture by the Sea also goes on in Perth.

In fact it’s just about to start this year. Check out this link for more info.

http://sculpturebythesea.com/cottesloe/index.html

Brent

1 03 2010
truenorthmark

Hey Brent,

I notice you are due to come over this way later this month. Heppy to catch up.

Drop me an email with your details at mark@northstarcruises.com.au

Cheers,

Mark

7 03 2010
muzz

G’day Brent,

first we’re paedophiles, then we’re terrorists, now we’re copyright thieves – won’t even start about photos of Uluru etc. It’s a wonder we’re not treated like outlaw motorcycle gangs.

Anyway, congrats on your Better Photography prizes – lucky you didn’t win a big prize with one of those SBTS images or you could’ve been thrown in the slammer!

8 03 2010
Brent Pearson

Hey Muzz

Yeah, I’m with you on the way everyone seems to be suspicious about photographers etc. Talk about over the top or what. Surely there are better ways of spending time than hassling photographers. Regarding Uluru, I just heard about that recently….. unbelievable!!!!

I’m not sure what you meant regarding the “Congrats on the Better Photography prizes”….. Not sure what you are referring to.

Brent

8 03 2010
muzz

Looked like you got a couple of Top 50’s/Silvers in the Better Photography Awards

http://competition.betterphotography.com/

29 09 2010
photographybyodille

You were lucky to get a polite notice, Brent, I just got abused. When I put them on RedBubble I never thought to untick the ‘image for sale’ box. Suddenly I am getting the most vitriolic attack you ever saw, both there and on Facebook. At no time did anyone email or Bubble mail or FlickrMail ASKING would I remove the for sale part – which I would have been happy to do. No, it was jump in kicking. Seems public art isn’t!

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