Re: [Leica] Copyright questions

["Mxsmanic" <mxsmanic@hotmail.com>]

> She began to wonder about copyright. Can she
> display the photograph of the sculpture without
> having to get a signed release by the sculptor?

It depends on the jurisdiction, but in general, the sculptor's copyright allows
him to control the use of photographs of his work, particularly if the
photographs feature his work specifically (as opposed to it merely appearing in
the frame).

In theory, a release is _always_ required.  In practice, it depends on many
factors.  If there is much at stake here, she may wish to contact a lawyer for
advice.  She could also do without a release and just hope that she won't be
sued, which might be plausible, depending on the circumstances.  Or she could
simply refuse to exhibit the photograph until she gets a release.

Another option is for her to require, in her own authorization giving the
gallery permission to exhibit the work, that the gallery obtain any other
necessary releases.  Of course, the gallery may balk at this, but if it agrees,
she should be protected.

> The gallery owner said the work was "heavily
> copyrighted" ...

There's no such thing.  It's either protected by copyright, or it's not.  In
general, copyright protection is the default, and it is automatic (no formal
procedure is required).

> US Copyright isn't something you apply for, is it?

No.  A work is copyrighted as soon as it is fixed in a tangible medium.

However, a copyright can be registered, which increases the scope of remedies
available to anyone whose copyright is being infringed (in particular, I seem to
recall that it increases the material damages that can be awarded).

> An artist can't copyright one piece of work more
> than another. Copyright can only be released, not
> increased, correct?

Essentially correct.  Copyright can be assigned, and a copyrighted work can be
released to the public domain by its author.  That's about it.  The rest is a
matter of licensing or authorizing the use of a copyrighted work--just as a
photographer licenses a photo for exhibition.

> The sculpture was not photographed in the gallery. It
> was owned by a private party. The current owner gave
> the photographer permission to take the photograph.
> Wouldn't this fall under "fair use"?

No.  The owner of the sculpture does not hold the copyright to it (unless the
sculptor assigned it to him), so he cannot manage copyright issues.  Ownership
of the physical object and ownership of the intellectual property are two
different things.

Additionally, "fair use" does not even remotely apply in this case.

> It seems to me if this is an issue any person taking
> a photograph with a sculpture in the frame could be
> infringing on copyright.

Unfortunately, that is true, and that is exactly how it works.  In practice, a
photographer may not always be sued for doing something like this, but he can
be, and he may or may not lose the case.

This is why organizations like movie companies are so extremely rigorous about
getting releases to absolutely everything appearing on film; it is also the main
reason why they work so hard on location to keep anyone except hired talent and
extras out of the frame during filming.