Who do I have to see about copies?
Q. Thank you for your help! We're an art library, and we're trying to find this information for our own use:
An artist created paintings of "Stations of the Cross" and then gave them to a church as a gift. The pastor of the church (now deceased) gave a photographer verbal permission to photograph the paintings and to reproduce the photographs. Photographer now wants to let the photos be used in a commercial video. Does the photographer own copyright to the photos, or does the church, or artist?
For paintings and sculpture on display in a museum: After our photographer received permission to photograph art works of a LIVING artist, the photographer photographs the work and wants to reproduce the photos. Does the photographer own copyright to the photos, or the museum, or the artist? (For this same question, if artist is deceased, would photographer own copyright, or museum, or artist's heirs?)
A. Copyright law is yet another of those esoteric areas of the law in which it seems only a select few actually know what is really going on. As you might expect, there’s no simple answer to either of your questions. I mean, I could simply say “The photographer owns the copyright to his pictures,” as the answer to both parts of your query, and that might be enough, but the reality is that it’s probably a little more complicated than that. Let me give you some general information about copyrights. Then you can decide how much additional information you might want from a copyright attorney in your area.
First, you should understand that there are federal copyright laws, state copyright laws, and common law copyright principles. The federal laws generally govern, but can be modified by state laws to the extent that those laws do not contradict the federal.
As to the first part of your question, you say that the artist who painted the “Stations of the Cross” (and therefore owned the copyrights to them). The artist then “gave” the paintings to the church as a gift. You should make certain that the paintings were a “gift” as opposed to a “work for hire” that the artist completed at the church’s request. If the church commissioned the paintings, it owns the copyright. If, however, the artist painted the paintings on his own and then gave them to the church, the artist owns the copyrights ... unless he simply abandoned them. (See, it does get complicated.) Under the common law, there is a test of the artist’s intention, which might eliminate the copyright interests all together. Did the act of the artist demonstrate an interest either in abandoning his rights in the work or in dedicating the work to the public? If so, it could be argued that there are no longer any copyright interests attached to his paintings.
Anyway, regardless of who owns the copyright, under the Federal law, the copyright owner has the exclusive right to do or to authorize five basic uses of the copyrighted work: 1) reproduce the work, 2) prepare derivative works based on the work, 3) distribute copies to the public, 4) perform the work publicly, and 5) display the work publicly. The Federal law also recognizes that certain uses of copyrighted material, even without the copyright owner’s permission, are socially useful and “fair,” such as using the work for criticism, comment, news reporting, teaching, scholarship, or research. This is a fact specific question, and is the basis of many of the defenses to copyright infringement cases.
Assuming the church did obtain the copyrights to the paintings, when the church, through its pastor, gave permission to a photographer to take pictures of the paintings and reproduce the pictures, the church did not give up the copyrights to the the paintings; it simply authorized reproduction of them.
What does all of that have to do with the photographer’s copyrights to his pictures? Well, by taking photos of the paintings, the photographer arguably created a separate work of art to which he owns the copyrights. Except....the photographer’s copyright interests in his photos could interfere with the church’s copyright interests in the paintings. Now, this is where it gets really fun. If the church knew the photographer was going to publish the pictures for the world to see, it could be argued that the photographer has the continuing right to further display the pictures of the paintings in the form of a video tape without infringing on the church’s copyright interests. Of course, the nature and extent of the initial agreement between the church and the photographer would control. For instance, what, exactly, did the church give the photographer permission to do? Did the photographer pay any royalty fees for taking pictures of the paintings? If so, were any conditions placed on his use of his pictures? Ideally, the initial agreement between the photographer and the church would have covered all future uses of the photos of the paintings. If it didn’t . . . well, that’s why we have lawyers.
As for Part II of your question, the same principles apply. The artist who created the original work (or his estate) owns the copyright to that work. The photographer owns the copyrights to his photos, to the extent that his copyrights do not infringe on the artist’s copyrights. However, several important issues can impact on each person’s rights. For example, what are the circumstances under which the photographer took pictures of the artist’s work? Did he pay a royalty fee? Did the artist give him permission? Did the artist condone the use? Is the photographer submitting his photos to an art critic, or an author of an art text book, or is he simply taking pictures and hanging them in a gallery as part of an original show?
The best bet is to have an understanding or agreement between the owner of the copyright to the art and the photographer before the pictures are taken. That agreement should define the scope of the photographer’s use -- both present and future -- of the photos. In any case, if you’re facing issues about potential infringements to copyrights, you would be well advised to consult with a copyright attorney in your area.
An artist created paintings of "Stations of the Cross" and then gave them to a church as a gift. The pastor of the church (now deceased) gave a photographer verbal permission to photograph the paintings and to reproduce the photographs. Photographer now wants to let the photos be used in a commercial video. Does the photographer own copyright to the photos, or does the church, or artist?
For paintings and sculpture on display in a museum: After our photographer received permission to photograph art works of a LIVING artist, the photographer photographs the work and wants to reproduce the photos. Does the photographer own copyright to the photos, or the museum, or the artist? (For this same question, if artist is deceased, would photographer own copyright, or museum, or artist's heirs?)
A. Copyright law is yet another of those esoteric areas of the law in which it seems only a select few actually know what is really going on. As you might expect, there’s no simple answer to either of your questions. I mean, I could simply say “The photographer owns the copyright to his pictures,” as the answer to both parts of your query, and that might be enough, but the reality is that it’s probably a little more complicated than that. Let me give you some general information about copyrights. Then you can decide how much additional information you might want from a copyright attorney in your area.
First, you should understand that there are federal copyright laws, state copyright laws, and common law copyright principles. The federal laws generally govern, but can be modified by state laws to the extent that those laws do not contradict the federal.
As to the first part of your question, you say that the artist who painted the “Stations of the Cross” (and therefore owned the copyrights to them). The artist then “gave” the paintings to the church as a gift. You should make certain that the paintings were a “gift” as opposed to a “work for hire” that the artist completed at the church’s request. If the church commissioned the paintings, it owns the copyright. If, however, the artist painted the paintings on his own and then gave them to the church, the artist owns the copyrights ... unless he simply abandoned them. (See, it does get complicated.) Under the common law, there is a test of the artist’s intention, which might eliminate the copyright interests all together. Did the act of the artist demonstrate an interest either in abandoning his rights in the work or in dedicating the work to the public? If so, it could be argued that there are no longer any copyright interests attached to his paintings.
Anyway, regardless of who owns the copyright, under the Federal law, the copyright owner has the exclusive right to do or to authorize five basic uses of the copyrighted work: 1) reproduce the work, 2) prepare derivative works based on the work, 3) distribute copies to the public, 4) perform the work publicly, and 5) display the work publicly. The Federal law also recognizes that certain uses of copyrighted material, even without the copyright owner’s permission, are socially useful and “fair,” such as using the work for criticism, comment, news reporting, teaching, scholarship, or research. This is a fact specific question, and is the basis of many of the defenses to copyright infringement cases.
Assuming the church did obtain the copyrights to the paintings, when the church, through its pastor, gave permission to a photographer to take pictures of the paintings and reproduce the pictures, the church did not give up the copyrights to the the paintings; it simply authorized reproduction of them.
What does all of that have to do with the photographer’s copyrights to his pictures? Well, by taking photos of the paintings, the photographer arguably created a separate work of art to which he owns the copyrights. Except....the photographer’s copyright interests in his photos could interfere with the church’s copyright interests in the paintings. Now, this is where it gets really fun. If the church knew the photographer was going to publish the pictures for the world to see, it could be argued that the photographer has the continuing right to further display the pictures of the paintings in the form of a video tape without infringing on the church’s copyright interests. Of course, the nature and extent of the initial agreement between the church and the photographer would control. For instance, what, exactly, did the church give the photographer permission to do? Did the photographer pay any royalty fees for taking pictures of the paintings? If so, were any conditions placed on his use of his pictures? Ideally, the initial agreement between the photographer and the church would have covered all future uses of the photos of the paintings. If it didn’t . . . well, that’s why we have lawyers.
As for Part II of your question, the same principles apply. The artist who created the original work (or his estate) owns the copyright to that work. The photographer owns the copyrights to his photos, to the extent that his copyrights do not infringe on the artist’s copyrights. However, several important issues can impact on each person’s rights. For example, what are the circumstances under which the photographer took pictures of the artist’s work? Did he pay a royalty fee? Did the artist give him permission? Did the artist condone the use? Is the photographer submitting his photos to an art critic, or an author of an art text book, or is he simply taking pictures and hanging them in a gallery as part of an original show?
The best bet is to have an understanding or agreement between the owner of the copyright to the art and the photographer before the pictures are taken. That agreement should define the scope of the photographer’s use -- both present and future -- of the photos. In any case, if you’re facing issues about potential infringements to copyrights, you would be well advised to consult with a copyright attorney in your area.
posted by David Kendall at
10:23 PM
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