About a year ago I was up in Seattle looking for something to photograph. It started raining pretty hard (big surprise) and my girlfriend suggested we go over to the Freemont Bridge and photograph the Troll Sculpture under the bridge to get out of the rain. We did. However, while breaking down the 4x5 camera a fellow appeared from "nowhere" and read us the riot act. Said that no one could photograph the troll with any intent to sell the photographs because the artist would not stand for it. At the time I thought maybe he just lived under the bridge himself. After all this was a piece of art permenantly displayed in a public place.

Well here we are a year later and I have a beautiful BW photo of the troll. My girlfriend is opening an import store and art gallery in August and wants me to display the troll (for sale) along with several of my other photos. Suddenly I keep hearing this fellow say "it would not be legal for you to sell photos of the troll" over and over in my head. Any comments ? Are there any circumstances where public art can not be photographed and sold ?

-- Paul Mongillo (pmongillo@thurston.com), June 28, 2000

Answers

Response to Legal Question

The only place to get your answer is from an attorney specializing in intellectual property rights in the State of Washington. There are many opinions on this but the local law prevails and is usually very specific. Both you and your girlfriend could be vulnerable if you get the wrong advice. Be careful here................

-- C. W. Dean (cwdean@erols.com), June 28, 2000.

Response to Legal Question

Paul,

This is a very important question, and I second C. W.s advice and would add that this is a constantly changing area of Law so you need to educate yourself and ask for legal assistance just to find the right attorney. It is very important to find someone that is active in this field. And I speak from experience when I say that you need to educated yourself, ignorance does not make a good defense. I hope your question generates good response. I would also add that there are many Cities,Towns, etc. that have a fee that they charge for the rights to use photographs taken in their City and or Towns etc. And I remember reading an article in a photo mag. not to long ago where I think Seattle was discussed as being one of those cities and that they have Photo Cops that read and look at publications just to find photos that they can collect on. Some how I remember that many National parks are, or are looking into, doing this to.

Good Luck....

-- R. (Mac) McDonald (rmacsteam@aol.com), June 28, 2000.

Response to Legal Question

Fees for photos in national parks? Gosh, I hope this wrong. Does anyone know which parks are considering this foolishness or have implemented it?

On the one hand it does seem that a photographer somehow is profiting from public land in which he/she had no part of creating. On the other, it just seems absured to charge for something that we all own as citizens. What is the harm? This is a very thought-provoking and confusing subject. I hope someone will share some details about what is happening.

I live 90 miles from Yellowstone, and hope to get up to Glacier NP shortly. I might sell some of my photos at some time in the future, but as a non-professional photographer, I don't feel I should be charged for practicing my hobby.

-- Ray Dunn (raydunn@mcn.net), June 28, 2000.

Response to Legal Question

With regard to the National Park Service policies, you can find them on line but I presently do not have the link. Basically, the policy goes something like this but be sure to confirm this as I may not have it precisely correct::::

As long as you do not have elaborate equipment, sets, lighting, props, models, and other paraphernalia, there is no fee. When they see photographers with the above, they start to ask questions about potential commercialism and can charge a professional use fee. A lot of this is left to the discretion of the local official(s).

Rules for State parks and private parks and gardens may be similar.

View camera gear tends to raise eyebrows as it's a tad more elaborate than the point-'n-shoots! If questioned, I tell the truth about being a professional and supply my business card and state business license--to date I have not been charged any fee, but I might add that I am a mature gent with silver hair and I am overwhelmingly polite to the officials!!!

-- C. W. Dean (cwdean@erols.com), June 28, 2000.

Response to Legal Question

The answer to every legal question is: "It depends." Photographing nature, even in a National Park may be one thing, but under federal copyright law, photographing someone's artwork (the work is most likely copyrighted) is another thing entirely. Think of it this way - - photographing and selling your prints of Half Dome in Yosemite v. photographing (copying) and selling prints of Ansel Adams' photograph of Half Dome in Yosemite. That is essentially the issue here in lurid 3-D. It might cost you a percentage, but I'd suggest contacting the sculptor and seeing what kind of license arrangement you can get -- artist to artist you'd get some respect for at least asking. Anyway, no legal advice intended or implied . . . yada, yada, yada.

-- Donald Brewster (dpbrewster@prodigy.net), June 28, 2000.

Response to Legal Question

I would certainly ask and be friendly about it, and maybe it might turn into a collaboration.

Didn't one of the professional organizations win a case some time ago involving a photographer who photographed the Rock & Roll Hall of Fame in Cleveland for commercial purposes? The H.O.F. claimed exclusive rights to sell images of its structure, but the court upheld the photog's right to photograph a building visible in the public space.

Nonetheless, it would be much more interesting and productive to collaborate with the sculptor, if you really like the work and the sculptor is amenable, than it would be to assert the right just to sell a few postcards.

-- David Goldfarb (dgoldfarb@barnard.edu), June 28, 2000.

Response to Legal Question

http://www.photosecrets.com/p14.html

Whenever this issue comes up, I like to post the above by a prominent copyright attorney on "Travel Photography and the Law," with material that applies here. The copyright to that sculpture undoubtedly (w/o legal opinion intended) belongs to the artist; as you will read, even buildings constructed after a certain date hold copyright. Maybe this is why we photograph so many anonymous rocks and trees!

-- David Stein (DFStein@aol.com), June 28, 2000.

Response to Legal Question

With golfer Tiger Woods having recently lost a suit trying to keep a painter from selling litho prints of a painting he did of Woods, the decisions are all over the place. But, shoot it in a public place & you can 'most likely' sell prints of it though not use it in an ad. Check with your attorney, or more specifically, one who specializes in intellectual property(many attorneys don't understand it and some don't know what it is either).

-- Dan Smith (shooter@brigham.net), June 29, 2000.

Response to Legal Question

I suggest that you contact the local ASMP chapter. They should be able to recommend a lawyer with experience in this area.

Bruce

-- Bruce M. Herman (bherman@gci.net), June 29, 2000.

Response to Legal Question

Whats ASMP ?

-- Paul Mongillo (pmongillo@thurston.com), June 29, 2000.

Response to Legal Question

What nobody has touched on yet, is the tremendous cost of defending yourself against a lawsuit. Sometimes the only way to win, is to not play.

-- Bruce Gavin (doc@compudox.com), June 29, 2000.

Response to Legal Question

Thank you all for your responses and very helful links to other pages. I'm convinced after reading your responses and checking the suggested links that I definately need to get ahold of the Freemont Troll artist before doing anything else with this negative an print. He obviously needs to be on board regarding any income that might be generated from my photograph. I have found his name and phone number and plan on contacting him this evening.

-- Paul Mongillo (pmongillo@thurston.com), June 29, 2000.

Response to Legal Question

Was a copyright notice prominantly placed or near the statue? Selling occasional " art" prints of an image usually is okay. making a POSTER AND DISTRIBUTING THOUSANDS OR SELLING THE IMAGE FOR USE IN ADVERTISING USUALLY REQUIRES A LICENSE. Your best bet is to contact the artist or his or her estate and ask. Whether it is located in public or private space is not the issue. "The Cadillac Ranch" near Amarillo is located within viewing distance of an interstate highway, daily probably dozens if not hundreds of people stop and make photographs of it. Some of those people are professionals. There is a copyright notice leading up to the installation. I tracked down the artists who created the installation (A collective known as"The Ant Farm") and asked and was glad I did as they are vigilant about protecting their copyright and getting royalties when the image is used in a commercial fashion. They retain an attorney to handle this for them. My images went to my stock agency with a clear notice that any commercial (i.e advertising as opposed to editorial or educational) usage would have to be okayed and licensed by The Ant Farm.

So about a year later I get a copy of a brochure from a paper company, designed by an ad agency with a photograp similar to mine, but no credit to the Ant Farm. Hmmm, I think. Two days later I get a call from my stock agent saying "hey we are really glad you followed up on that copyright licensing of the Cadillac Ranch images. Why? I ask. "Because this ad agency wanted to use your image for a paper company's marketing brochure but they didn't want to hassle with getting license and paying a fee to the artists so they an image from another agency". Yeah? I respond."And now the client, the aad agency, the stock agency and the photographer are all being sued by The Ant Farm.

Curiously, one of the things one of the Ant Farmers said to me was they weren't worried about people making and selling photographic prints, just commercial usage like posters and ads.

-- Ellis Vener (evphoto@insync.net), June 29, 2000.

Response to Legal Question

You reveived very good advice. Here is my very personal "common sense" opinion: Everything that is on common display should be "free game" for photographers, be it landscapes (lone pine tree!!), be it buildings, be it sculptures somebody placed in public. I find it ridiculous not to be allowed to paint/photograph/write about a piece of art that is on PUBLIC display. If the artist doesn't like it, he shouldn't place it in the open but in a museum instead. Things inside of museums, galleries, shops (like the Ansel Adams print mentioned above) etc. of course should NOT be photographed.

I know, that this "common sense view" is not what the law prescribes - and I find it very sad!!!!

-- Andreas Carl (andreas@physio.unr.edu), June 29, 2000.

Response to Legal Question

Why not keep it simple and contact the sculptor? Explain your desire to share his work and yours with a larger audience and ask if he'd have any objection to your selling prints in your girlfiend's gallery. Offer to send him a courtesy print and promise that, beyond selling prints as agreed, you'll never publish the photo elsewhere without coming back to gain permission for another use. Offer to send him a letter to that effect. If he agrees to let you sell prints, you could then ask for a permission letter that you can show to gallery owners or buyers. In short, approach the artist with respect and consideration and create a positive experience. Achieving your goal without getting any more legalistic than you have to is a victory for everyone involved.

-- Steve Singleton (singleton1@bigfoot.com), June 30, 2000.

Response to Legal Question

I agree with the sentement of the other posters, contact the artist and try to arrange something, say perhaps crediting them on either the back (e.g location, name of sculpture, date it was erected/or when photo taken, name of artist), or in part of the title of the print. By all means offer a royalty fee, if they have any other works offer to shoot them. Remember to offer say a 16x20 selenium or otherwise toned print.

-- David Kirk (David_J_Kirk@hotmail.com), July 01, 2000.

Response to Legal Question

As far as Gentile and the Rock and Roll Hall of Fame, I had understood the opposite of what the previous poster said.

I read that Gentile had won the case because 1) he was on public property while photographing the building and therefor did not infringe on the building physically, and 2) the building is such a dominating part of Cleveland's skyline, shoreline and overall image that the museum could not claim exclusive rights to its being photographed.

Am I referring to an earlier ruling? If what the poster said is true, it will progress out of district court to supreme court before it is decided. FYI, the ASMP, American Society of Media Photographers, is handling his legal costs.

Frank

http://www.culturalvisions.com/

-- frank Ward (frank@culturalvisions.com), July 03, 2000.

Another legal question posted today made me revisit this post. I felt I should give the outcome. I did contact the Troll artist. It turned out to be four people. I talked to two of them. They dicussed my request to display Troll prints for sale in gallery like conditions. They agreed in writing to let me sell the print as long as I gave them credit on the back of the matted prints. The letter allows me to sell the print for two years at which time the issue would need to be revisited. They requested a one time exchange of money. I can't remember, but I think it was $10.00. They did not wish to receive a commision.

-- Paul Mongillo (pmongillo@thurston.com), February 08, 2001.

This is a little off the main question but bears on some of the other comments re:natl. Parks. I was in DC last year and wanted to take a shot inside the train station. I was off in a corner next to a potted plant totally out of the way but a guard came over and said, "No tripods". I couldn't disuade him. Then later on I was out side the Hirshorn Museum on the Mall and a guard came out with the same request. I had to move back to the public sidewalk to appease him. Still later I wanted to take a shot in a metro station and set up the tripod behind a bench again out of the way and was told to move along. The next day on the lower entry "patio" of the Supreme court bldg another guard came over and wanted to know if I was going to sell the picture. I can undersatand having dozens of tripods in the middle of pedestrians but 1 person ???

-- George Nedleman (gnln@thegrid.net), February 08, 2001.