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 :?)