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 Chicago’s Millennium Park, and Christo and Jeanne-Claude, whose “Gates” project was on view for 16 days in New York’s 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 Kapoor’s 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 can’t copyright the park. But they weren’t kidding, so I handled it the Chicago way—I 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 Christo’s enforcement of his rights in a court of law.”
“We hope that you can appreciate Christo and Jeanne-Claude’s 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 lawyer’s 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. “It’s an outgrowth of the artists’ right movement.”
Certainly, the federal copyright law gives the copyright holder—the artist—the 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 doesn’t 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 doesn’t 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 premises—itself a matter of real property law—entitling 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 Wimmer’s career is sports, rather than fine art, photography—“I’m not a Chicago scenery photographer; I just planned to put the photograph in my basement”—his 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 purposes—protecting schools and publications from infringement claims, for instance—and also requires a degree of “economic injury” to the copyright holder. Would a painting or photograph of a work of art lessen the copyright holder’s 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 York’s Nature as a fundraising aid to this nonprofit urban ecology organization, and unauthorized knock-offs could cut into those revenues.
Potentially weakening Christo’s case against infringers is the fact that The Gates was not a unitary piece like Kapoor’s 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.”