# Am I being sued?!!!????



## Tight Knot (Aug 29, 2012)

Wow!! I don't even know where to start.
I was at a park in Israel, and saw a sculpture reflecting light. I took a photo of it, and put it on my website calling it Reflective Man 2.

It is a public park, you pay to get in.
I did not see any names or titles on the sculpture, and did not see any signs prohibiting photography in the park.

But this is the email I just received:

_That is not a reflexive man that is "SHE" a copyrighted work (including the name of course) by Merle Temkin a well known american artist. you cannot change the name and sell it. i am the curator of the park and i think that what you have done is very ugly. we are contacting a lawyer you will hear from us_.

So, any ideas whether this is a problem or not? Am I wrong in thinking that it's a public space, and I can take photos, even for commercial use? Needless to say, it is a terrible photo, not sharp enough for my liking, have had NO, I repeat 0% interest in it, but liked the idea of the photo. Even though it is on my website, the chances of me ever selling it, are next to impossible.

I realize that Israeli law is different to American law, but being that the artist is supposedly American, what do you guys think?

This is a link to her website MerleTemkin.com - Recent Work, and the sculpture is at the bottom, this is a link to my photo http://www.legacy-photography.net/TheRestofBoruchsBest/Urban/18050812_xhV4br#!i=1487215726&k=ksJkfbR&lb=1&s=A (please no comments on the photo, I know it is terrible, just posting to show what the hullabaloo is about.


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## Majeed Badizadegan (Aug 29, 2012)

Tight Knot said:


> It is a public park, you pay to get in.



:scratch: This is a bit confusing and contradictory. I suppose some parks in the U.S. we pay day use fees and such, but many local city parks, etc. are completely free. 

If you truly took the photo from a public space, they have no grounds. If this is a private area and photography is prohibited to some degree, that could be a different story.


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## MLeeK (Aug 29, 2012)

Keith will eventually get around to commenting, but I am going to say NO. 
There is some issue with the fact that SHE is in Israel and  you are also not in the US. And neither are you. Therefore US copyright laws cannot be enforced.

On top of that your PHOTOGRAPH of the original work of art is not a copy of it. It is another artist's rendition and while it contains the original statue, it is not a copy of it in any way. 
You are also in no way claiming that the original statue is your work, you are only claiming that the photograph of the statue and it's surroundings are your work. 
I would tell the sender that you "eagerly await the contact of their US attorney. Have a nice day."


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## Tight Knot (Aug 29, 2012)

Rotanimod said:


> Tight Knot said:
> 
> 
> > It is a public park, you pay to get in.
> ...



I don't understand it myself, but it is a municipal city park, and you pay to get in.

What do I even answer to this craziness???


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## Designer (Aug 29, 2012)

It will probably be only a letter.  

Meanwhile, if you have the name of the artist or his lawyer, you can "respond" with: "What kind of exhibit is this with no name of the sculpture, nor of the artist?"  Be sure to cc the curator.


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## Tight Knot (Aug 29, 2012)

MLeeK said:


> Keith will eventually get around to commenting, but I am going to say NO.
> There is some issue with the fact that SHE is in Israel and  you are also not in the US. And neither are you. Therefore US copyright laws cannot be enforced.



WOW!! 
This is strange.


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## MLeeK (Aug 29, 2012)

I can't find any copyrights to Merle Temkin 

Or for a sculpture titled SHE in 2009 or later. 
It's a load of bull. 
I'd play along with it for a while and see what you get. Request the copyright information and where it is prohibited to photograph the sculpture, etc. I am guessing it is going to be some type of scam to get you to "settle" out of court for a fee... Which they will then ask you to transfer or pay to the "attorney" of record which will also be OUTSIDE the US.


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## Tight Knot (Aug 29, 2012)

Designer said:


> It will probably be only a letter.
> 
> Meanwhile, if you have the name of the artist or his lawyer, you can "respond" with: "What kind of exhibit is this with no name of the sculpture, nor of the artist?"  Be sure to cc the curator.



The truth is, I didn't see any info on or near the sculpture, but that doesn't mean there wasn't any.
I have no clue whether this person is even the curator.

Is there such a thing as a sculpture being copyrighted, in a public place, no signs prohibiting photos, and not even being able to take a photo of it?


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## Tight Knot (Aug 29, 2012)

MLeeK said:


> I can't find any copyrights to Merle Temkin



I looked also, and likewise, couldn't.


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## MLeeK (Aug 29, 2012)

It could happen, but on the artist's website it was commissioned by the city of Karmiel, Israel and built there. That would tell me that it can't be copyrighted. 
Call the park and ask who the curator is if you are truly concerned. My money is on a scam. And I'd probably lay a considerable amount of money on it. Pretty safe bet!


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## Tight Knot (Aug 29, 2012)

MLeeK said:


> It could happen, but on the artist's website it was commissioned by the city of Karmiel, Israel and built there. That would tell me that it can't be copyrighted.
> Call the park and ask who the curator is if you are truly concerned. My money is on a scam. And I'd probably lay a considerable amount of money on it. Pretty safe bet!


I think I'll do exactly that.


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## Tight Knot (Aug 29, 2012)

MLeeK said:


> I can't find any copyrights to Merle Temkin
> 
> Or for a sculpture titled SHE in 2009 or later.
> It's a load of bull.
> I'd play along with it for a while and see what you get. Request the copyright information and where it is prohibited to photograph the sculpture, etc. I am guessing it is going to be some type of scam to get you to "settle" out of court for a fee... Which they will then ask you to transfer or pay to the "attorney" of record which will also be OUTSIDE the US.



If this is a scam, this person or these people are just sad, sad people.


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## mjhoward (Aug 29, 2012)

Even in the US, you cannot photograph a copyrighted work and, as the main subject in your photograph, try and sell it.  Whether you want to sell the photo or not, it IS on your site for sale right now.  Landmarks and statues are 100% copyrightable.  Hell, photographing the Eiffel tower at night is even considered copyright infringement because of the lighting design on it.


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## Tight Knot (Aug 29, 2012)

Just found this Brooklyn Museum: Elizabeth A. Sackler Center for Feminist Art: Feminist Art Base: Merle Temkin

No insults intended to feminists at all, but I am wondering if someone who is a feminist took offense to my naming of the sculpture "Reflective Man" instead of "She".
Either way, now that I have been informed of the name and artist, does anyone recommend that I change the name of the photo to the correct name, and attribute it to the artist?


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## unpopular (Aug 29, 2012)

DISCLAIMER: THE FOLLOWING IS NOT INTENDED TO BE USED FOR INFORMATIONAL OR EDUCATION PURPOSES AND IS PROVIDED ONLY AS CONJECTURE. I AM NOT AN ATTORNEY AND DO NOT OFFER LEGAL ADVISE.

I have no idea about Israeli law. This does conform to American copyright law. You cannot sell a derivative work in such a manner that it would harm the artist's reputation. However, I am not certain that the curator would have a claim on this, even if the park holds the copyright. In any case US copyright laws cannot be enforced, but that doesn't mean that the copyright is not being held in Israel. Furthermore the artist could sue you in Israeli court, provided ofcourse you violated Israeli law.

As far as public sculpture being copyright, yes it certainly can be. But taking a photograph of it may or may not be a violation. This really does get into some grey areas, though, I think in this case judging by what you wrote it is.

Either way, I think the letter you received is REALLY, REALLY strange. I would suggest that you do remove the image from sale and public display immediately, and wait for the lawyers to contact you, see what it is they want you to do. If it's just a matter of removing the image, I'd say there isn't enough value to not not comply. If they're demanding damages, hire an attorney.

There is a chance that this is a scam, and that they are just trying to get you to send them money. Under absolutely no circumstances should you just hand over a check until you discuss your options with an attorney.


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## Tight Knot (Aug 29, 2012)

mjhoward said:


> Even in the US, you cannot photograph a copyrighted work and, as the main subject in your photograph, try and sell it.  Whether you want to sell the photo or not, it IS on your site for sale right now.  Landmarks and statues are 100% copyrightable.  Hell, there are circumstances where you arnt  legally allowed to photograph the Eiffel Tower.



Talk about me not having a clue. So, do I just remove it?


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## MK3Brent (Aug 29, 2012)

Your reply: "YOU'RE....ugly.." 



That should fly. 


_&#8203;I wouldn't worry about it. _


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## Tight Knot (Aug 29, 2012)

unpopular said:


> I have no idea about Israeli law. This does conform to American copyright law. You cannot sell a derivative work in such a manner that it would harm the artist's reputation. However, I am not certain that the curator would have a claim on this, even if the park holds the copyright. In any case US copyright laws cannot be enforced, but that doesn't mean that the copyright is not being held in Israel. Furthermore the artist could sue you in Israeli court, provided ofcourse you violated Israeli law.
> 
> As far as public sculpture being copyright, yes it certainly can be. But taking a photograph of it may or may not be a violation. This really does get into some grey areas, though, I think in this case judging by what you wrote it is.
> 
> ...


And remove it I shall. Do I send them an email at all?


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## KmH (Aug 29, 2012)

Tight Knot said:


> The truth is, I didn't see any info on or near the sculpture, but that doesn't mean there wasn't any.
> I have no clue whether this person is even the curator.
> 
> Is there such a thing as a sculpture being copyrighted, in a public place, no signs prohibiting photos, and not even being able to take a photo of it?


There likely doesn't have to be any info on or near the work of art.
Taking a photo is one thing, using the photo without permission and offering it for sale online on your web site might be an infringement. You might want to contact an attorney familiar with the copyright and publication laws of Israel. Since you are offering the photo for sale, commercial usage may apply.

Pretty much all intellectual property is copyrighted and a sculpture is indeed intellectual as well as real property.

You aren't being sued yet, but you could be. Being sued doesn't mean you're guilty. But it still can cost money to answer a law suit even if you're 100% innocent.
It could come to nothing. An online photography forum is the wrong place to seek legal advice. 

Copyright is essentially worldwide, in so far as the international copyright agreement that has been signed by 160+ countries - The Berne Convention for the Protection of Literary and Artistic Works, usually just known as the Berne Convention. Berne Convention for the Protection of Literary and Artistic Works - Wikipedia, the free encyclopedia

If you haven't already, I highly recommend you take that photo off your web site *A*s *S*oon *A*s *P*ossible.

But, here is the deal. If it was/is an infringement, they may have already made copies of the web page to use in court.


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## unpopular (Aug 29, 2012)

Tight Knot said:


> Do I send them an email at all?



Common sense would say that you shouldn't say anything until you speak with an attorney.

I don't think the reason to remove the image is to try to destroy evidence, but rather to say that you're willing to comply.


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## Tight Knot (Aug 29, 2012)

Thanks KMH and Unpopular,
Already taken down. And when I return to Israel in 2 1/2 weeks, I will contact an attorney there.


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## unpopular (Aug 29, 2012)

KMH - but the letter seems to imply that they are complaining on grounds of reputation. I am not sure that the _museum_ can have this complaint.

IDK though, maybe it's the sale? If that's the case damages are going to be non-existant.


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## unpopular (Aug 29, 2012)

Tight Knot said:


> I will contact an attorney there.



Good plan. Chances are you'll just get a cease and dismiss letter.


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## Tight Knot (Aug 29, 2012)

This all goes to show how important learning the legalities of photography really are.


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## molested_cow (Aug 29, 2012)

This whole thing sounds messy.
If I take a photo of the Empire State building and sell it, which I'm sure you can find tons of that on stock photography sites, can I get sued by the owner, or the firm that designed the building?

I personally think this person who wrote the letter is full of bull. It's a public park, which should serve the public. You are the public. If this gets any more ridiculous, either get a lawyer or just make a "innocent" inquiry with your local representative or paper. After all, it is about public interest.


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## mjhoward (Aug 29, 2012)

unpopular said:


> IDK though, maybe it's the sale? If that's the case damages are going to be non-existant.



IDK... This makes it seem like damages may be irrelevant or at least unnecessary.  Apparently, significant jail time is also a possible consequence to copyright infringement there: http://www.tau.ac.il/law/members/birnhack/IsraeliCopyrightAct2007.pdf

Section 62 is what I was looking at.


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## mjhoward (Aug 29, 2012)

molested_cow said:


> This whole thing sounds messy.
> If I take a photo of the Empire State building and sell it, which I'm sure you can find tons of that on stock photography sites, can I get sued by the owner, or the firm that designed the building?



Buildings built before 1990 are not copyrightable but ones built after 1990 are.  If it is built after 1990, you need to check if it has been copyrighted and get permission.  You will also need permission if there are art works on the building or in your field of view because the art works are likely copyrighted.  Copyright expires, I believe, 70 yrs after the passing of the originator.


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## Tight Knot (Aug 29, 2012)

mjhoward said:


> unpopular said:
> 
> 
> > IDK though, maybe it's the sale? If that's the case damages are going to be non-existant.
> ...


Imagine going to jail for this. All I can keep on saying is WOW!!.
What about page 7:

23. Broadcast or
copying of work
in public place
Broadcasting, or copying by way of photography, drawing, sketch or
similar visual description, of an architectural work, a work of
sculpture or work of applied art, are permitted where the aforesaid
work is permanently situated in a public place.


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## rexbobcat (Aug 29, 2012)

If you don't sell it...I don't see a problem...


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## Tight Knot (Aug 29, 2012)

rexbobcat said:


> If you don't sell it...I don't see a problem...



:thumbup:


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## Trever1t (Aug 29, 2012)

Is it possible for a curator to sue for copyright infringement of an artist's work? (Curator not being the copyright holder?)


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## Derrel (Aug 29, 2012)

MLeeK said:


> Keith will eventually get around to commenting, but I am going to say NO.
> There is some issue with the fact that SHE is in Israel and  you are also not in the US. And neither are you. Therefore US copyright laws cannot be enforced.
> 
> On top of that your PHOTOGRAPH of the original work of art is not a copy of it. It is another artist's rendition and while it contains the original statue, it is not a copy of it in any way.
> ...



Sounds about right. YOU CREATED an ENTIRELY NEW work, in an entirely different medium...there is zero chance that the two would be confused in the minds of any buyer...you are not bound by US laws...the people who sent the letter are not lawyers, but are merely threatening you. They say what you did was, "Ugly"??? Oh....how very weak and wishy-washy. Ludicrous as well. My gut feeling is that this letter is what most people would call "bull-puckey". A lot of people have big egos and tiny brains. I would not worry about this "letter". I am not a lawyer (thank heavens for that blessing....they are scum...).


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## mjhoward (Aug 29, 2012)

Derrel said:


> MLeeK said:
> 
> 
> > Keith will eventually get around to commenting, but I am going to say NO.
> ...



Im not saying they're not firing blanks, but US copyright law DOES protect the copyright holder of that piece against "derivative works", which includes photographs of statues.  Only the copyright holder can authorize a derivative work.


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## Steve5D (Aug 29, 2012)

Quite honestly, I don't see what the problem is. Someone doesn't like the fact that the name of the work was changed. Okay, I can understand that. Think how pissed off Zeppelin would be if someone decided to rename "Houses Of The Holy" and call it "Little Church Ditties".

But they've informed you that they're going to contact an attorney, and that you would hear from them. Okay, so wait and see what they, or their attorney, has to say. Doing anything else, including taking the photo down, is premature. There's certainly nothing to indicate that you're being sued. Someone talking to an attorney is an ocean away from suing someone, so don't sweat it.

I wouldn't send them a thing, or contact them in any way. They told you that you would hear from them. Okay, then wait for that...


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## unpopular (Aug 29, 2012)

Derrel said:


> Sounds about right. YOU CREATED an ENTIRELY NEW work, in an entirely different medium...there is zero chance that the two would be confused in the minds of any buyer...



Nope see Reece v. island Treasure Art Gallery, inc:

NATIVE HAWAIIAN LAW SUMMARIES: RECENT CASES

The court did rule in favor of the defendant, but not because copyright hadn't been infringed, but rather because damages could not be proven.


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## Tight Knot (Aug 29, 2012)

Steve5D said:


> Quite honestly, I don't see what the problem is. Someone doesn't like the fact that the name of the work was changed. Okay, I can understand that. Think how pissed off Zeppelin would be if someone decided to rename "Houses Of The Holy" and call it "Little Church Ditties".
> 
> But they've informed you that they're going to contact an attorney, and that you would hear from them. Okay, so wait and see what they, or their attorney, has to say. Doing anything else, including taking the photo down, is premature. There's certainly nothing to indicate that you're being sued. Someone talking to an attorney is an ocean away from suing someone, so don't sweat it.
> 
> I wouldn't send them a thing, or contact them in any way. They told you that you would hear from them. Okay, then wait for that...



Hi Steve,

What you say makes sense, however I have removed the image from my website. As far as changing the name goes, it's quite funny, but that is just the name I saved the photograph under, not knowing what it was. SmugMug uses the saved names of the images unless another title is given.
I could understand the artist being upset at the name "change", and therefore took it down. However, I still feel it is largely a feminist issue, as in the same  group of photos, I had another one of 3 sculptures together, titled "3 sculptures in Park Karmiel" which the "curator" did not mention at all. The fact that I was so nasty to do this "ugly deed" of taking something called "She" and calling it "Reflection MAN"  and therefore changing it's gender, must have ticked her off. And the worst part is, If I had known it was called "She", that is exactly what I would titled the photo.
I believe women are far superior to most men in a lot of ways.


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## Tight Knot (Aug 29, 2012)

unpopular said:


> Derrel said:
> 
> 
> > Sounds about right. YOU CREATED an ENTIRELY NEW work, in an entirely different medium...there is zero chance that the two would be confused in the minds of any buyer...
> ...


Hopefully if there is an issue, they will see the same thing here, that A. There are no damages, B. I made no profit from this in any way, and C. That it really was nothing more than a totally innocent mistake.


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## 2WheelPhoto (Aug 29, 2012)

Nigerian scammer!


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## unpopular (Aug 30, 2012)

^^ I agree. The letter from the "curator" doesn't really make any sense. I wouldn't be surprised if you get a letter in a few days demanding some completely outrageous amount, followed by some vague legal threats.

It seems also very strange to me that the curator would contact you like this, rather than their legal representation. I don't think the curator would have the authority to represent the museum like this.

The whole thing just seems weird.

As for derivative work, I think that there is room for appropriation: 

I photographed these Wayne Porter sculptures







Certainly I don't own the likeness of the sculpture, but does the composition add enough to be transformative enough that I own the image? I do not believe the two sculptures were intended to be one contiguous piece, and I feel the landscape plays a vital role to the image.

But what about this image of, and perhaps more accurately, _consisting_ _of_ another Porter Sculpture:






Certainly, my interpretation of this sculpture varies significantly from Mr. Porters' intent and vision, and if one were not familiar with the sculpture, it would be unlikely that the two would correlate. Only two of the five fingers were used in the image, and major, defining elements are missing. Furthermore the juxtaposition creates a sense of ambiguous scale, while the scale in the sculpture is an extremely pronounced element.

http://portersculpturepark.com/porter2/content/images/large/pain_and_joy.jpg

Again, I don't own the likeness of the sculpture - but is this image "transformative enough" to call my own?

---

really, copyright law is a cluster**** of vagueness, and this "transformative" take on derivative work is almost like something taken out of existential philosophy or art theory class. I think it's important that artists are permitted to appropriate, as this is a core foundation to contemporary Western philosophy and the beliefs we hold. But how one may use appropriation and how it fits into fair use and copyright is yet to really be established firmly.


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## fwellers (Aug 30, 2012)

I will stick with the simple:
1) Photo taken from public place
2) I am not using it as any advertisement, but just editorial.
 =
I am safe from the retards and lawyers.
I will continue to refuse to make my non-pro camera hobby into a complicated legal issue.


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## unpopular (Aug 30, 2012)

Certainly us "non-pros" have it easy in the copyright department. You're very unlikely to get into any copyright issues at all so long as you press the shutter and never sell the photograph - even if it were infringement, there wouldn't be any damages - especially as far as I know, a photograph could never, ever be called a "mechanical reproduction" of a sculpture, and even less so a building - it would always be derivative.

OTOH, for those who do sell their work it gets _very_ complicated.


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## fwellers (Aug 30, 2012)

unpopular said:


> Certainly us "non-pros" have it easy in the copyright department. You're very unlikely to get into any copyright issues at all so long as you press the shutter and never sell the photograph - even if it were infringement, there wouldn't be any damages - especially as far as I know, a photograph could never, ever be called a "mechanical reproduction" of a sculpture, and even less so a building - it would always be derivative.
> 
> OTOH, for those who do sell their work it gets _very_ complicated.



Even though I am not a pro, I also will sell any photo I take if someone wants to buy it, and still only apply my two rules.
It may yet never be an issue for me, because nobody is knocking down the doors to buy anything from me. ))


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## kundalini (Aug 30, 2012)

The August 2012 issue of Rangefinder magazine discusses this very subject in their regular article of Legal Lens: "How Public is Public Art".

*Rangefinder - August 2012*


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## KmH (Aug 30, 2012)

unpopular said:


> Certainly us "non-pros" have it easy in the copyright department. You're very unlikely to get into any copyright issues at all so long as you press the shutter and never sell the photograph - even if it were infringement, there wouldn't be any damages -


There don't have to be any monetary damages, which is in part what statutory damages are all about.

However it doesn't do the copyright owner much good to sue someone that can't pay the statutory award.

Selling photos is not always considered a commercial use. Selling photos may also be considered an editorial usage.

The bottom line is, it's not as cut and dried as, say, traffic laws. 

Plus a lot of copyright infringement disputes never make it to court, because a settlement is made before it gets that far.


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## Derrel (Aug 30, 2012)

Steve5D said:


> Quite honestly, I don't see what the problem is. Someone doesn't like the fact that the name of the work was changed. Okay, I can understand that. Think how pissed off Zeppelin would be if someone decided to rename "Houses Of The Holy" and call it "Little Church Ditties".
> 
> But they've informed you that they're going to contact an attorney, and that you would hear from them. Okay, so wait and see what they, or their attorney, has to say. Doing anything else, including taking the photo down, is premature. There's certainly nothing to indicate that you're being sued. Someone talking to an attorney is an ocean away from suing someone, so don't sweat it.
> 
> I wouldn't send them a thing, or contact them in any way. They told you that you would hear from them. Okay, then wait for that...



Exactly. They threatened you. ANYBODY can type out the words, "my lawyer" and then slap a vague threat behind those two words. But, you've apparently already caved. No worries.


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## fwellers (Aug 30, 2012)

kundalini said:


> The August 2012 issue of Rangefinder magazine discusses this very subject in their regular article of Legal Lens: "How Public is Public Art".
> 
> *Rangefinder - August 2012*




God, what a depressing article. 
Call me the ugly photographer if you want, but I don't intend to pollute my brain with that kind of stuff. I'd sooner throw my camera in the trash than have to constantly be looking around to see whose copyright I may be violating, apparently just to even post it on my website.  Already I am really careful around people. But I like shooting scenes, architecture, urban and rural stuff, and I literally can't be bothered to concern myself with someones petty bs copyright on something I can see from any public place. 
If they don't want it photographed and shared, then they should put it in their attic.


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## mjhoward (Aug 30, 2012)

Derrel said:


> Steve5D said:
> 
> 
> > Quite honestly, I don't see what the problem is. Someone doesn't like the fact that the name of the work was changed. Okay, I can understand that. Think how pissed off Zeppelin would be if someone decided to rename "Houses Of The Holy" and call it "Little Church Ditties".
> ...



I think the OP's question was mainly whether or not it was even a possibility that he'd broken any laws since the art was in a public place, not whether the curator would actually go through with a lawsuit.  Whether or not they actually go through with a lawsuit is only going to be speculation and time will tell.  Whether or not the OP infringed on copyright is NOT speculation and he apparently DID infringe on copyright giving them grounds to sue him if they wanted.


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## unpopular (Aug 30, 2012)

KmH said:


> There don't have to be any monetary damages, which is in part what statutory damages are all about.



I was under the impression that statutory damages are only awarded in the case of mechanical reproduction, not derivative work. I'm pretty sure that's the case, I could be wrong.

Not all copyright violations are the same.

Also, what constitutes an "editorial"? KMH - you kind of make this all out like it's cut and dry: that if you register your material you can pretty much just bank on $100,000 coming in through your door whenever anyone comes even close to a copyright violation. This couldn't be further from the truth.


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## unpopular (Aug 30, 2012)

Derrel said:


> Exactly. They threatened you. ANYBODY can type out the words, "my lawyer" and then slap a vague threat behind those two words. But, you've apparently already caved. No worries.



Getting your ego wrapped up in it is a foolish position to take. Getting your panties all in a knot over an image that isn't really worth anything is just a liability. 

If you're willing to comply, then taking it down until the issue is resolved. You can always put it up again later.


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## Tony S (Aug 30, 2012)

You've deleted the image from your site, so now delete the email you got and go on with life.  I would only spend any further thought or effort on this if you got a real notice from a real attorney.


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## gsgary (Aug 30, 2012)

A public park you pay to get in ? i would be sueing them you shouldnt be paying to get into a public park


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## unpopular (Aug 30, 2012)

No. It's a sculpture park. It's more like a museum.


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## Tight Knot (Aug 30, 2012)

mjhoward said:


> Derrel said:
> 
> 
> > Steve5D said:
> ...


They sure did threaten, and if there is one thing I have learned in life, is to choose my battles. If I feel what I have done is wrong, I do what I can to fix it. If I feel what I have done is not wrong, but will cause me troubles beyond what it is worth, I will pull out.
In this case, I don't see anywhere that the sculpture or name is copyrighted, I certainly would not have put it on my website had I known there even was such a law, and the reality, is, it is just not worth bringing my ego into something that I have not, and chances are, never will, make money off of, as it is so below par (ie. such a terrible photo), that I am still not sure why I even had it on my site. I must have overlooked it.
So, there definitely is speculation on whether or not I infringed on a copyright, and at this stage, I took it off the site, and will wait to see what happens, because there is nothing more that I can do.


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## gsgary (Aug 30, 2012)

unpopular said:


> No. It's a sculpture park. It's more like a museum.



Best sculture park in UK, and guess what it's FREE http://www.ysp.co.uk/


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## Kolia (Aug 30, 2012)

Playing devils advocate here  

What if we imagine a scenario where an evil photographer takes pictures of statues, rename them and put those pictures for sale for profit ?

Wouldn't THAT be a copyright infringement ?

Because, apart from the intention, that is basically what the op did. 

I'm not making any accusation. Just trying to see the situation in a different way.


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## Tight Knot (Aug 30, 2012)

Kolia said:


> Playing devils advocate here
> 
> What if we imagine a scenario where an evil photographer takes pictures of statues, rename them and put those pictures for sale for profit ?
> 
> ...



No-one is saying that what I did was righteous, we are just trying to find out whether it was wrong, and based upon this, there will be those who don't care, and those photographers who will be more careful in the future, myself included.
Either way, other than remove it from my website, there is nothing else that I can do , except wait for them to either have a lawyer contact me, or for them to do nothing.
The ball is in their court.
It just goes to show how careful a person has to be to learn the laws, when they venture into new ground to try and make a living. Scary, considering I was really not trying to hurt, injure or cause harm to anyone.
It also makes a difference whether the item/sculpture was copyrighted or not.


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## gsgary (Aug 30, 2012)

Tight Knot said:
			
		

> No-one is saying that what I did was righteous, we are just trying to find out whether it was wrong, and based upon this, there will be those who don't care, and those photographers who will be more careful in the future, myself included.
> Either way, other than remove it from my website, there is nothing else that I can do , except wait for them to either have a lawyer contact me, or for them to do nothing.
> The ball is in their court.
> It just goes to show how careful a person has to be to learn the laws, when they venture into new ground to try and make a living. Scary, considering I was really not trying to hurt, injure or cause harm to anyone.
> It also makes a difference whether the item/sculpture was copyrighted or not.



Personally i would tell them to **** off im sure they can do nothing


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## skieur (Sep 17, 2012)

mjhoward said:


> Even in the US, you cannot photograph a copyrighted work and, as the main subject in your photograph, try and sell it. Whether you want to sell the photo or not, it IS on your site for sale right now. Landmarks and statues are 100% copyrightable. Hell, photographing the Eiffel tower at night is even considered copyright infringement because of the lighting design on it.



Incorrect,.  You certainly can photograph a copyrighted work in the US if it is a work of art, permanently situated in a public place, a statue, landmark and for that matter a "copyrighted" building.

skieur


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## unpopular (Sep 17, 2012)

Provided that the photograph is non-commercial and editorial, as well as several other provisions concerning ownership.

we all like to play Perry Mason from time to time. But seriously, at least do a _little_ research.


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## PlanetStarbucks (Sep 18, 2012)

Kolia said:


> Playing devils advocate here
> 
> What if we imagine a scenario where an evil photographer takes pictures of statues, rename them and put those pictures for sale for profit ?
> 
> Wouldn't THAT be a copyright infringement ?



Well, that actually is exactly why copyright laws are the way they are.  The law is meant to protect people.  In that case, it's meant to protect the copyright owner from having their work abused by another person.  On the other hand, the intention of law is to protect people, not persecute them.  Unfortunately, civil law doesn't work in the civic interest the way criminal law does, so you end up with copyright owners feeling that they can use the law to persecute anyone who uses their work.  IMO, this isn't what the law was meant to do.  Doesn't mean they can't though...


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## Steve5D (Sep 18, 2012)

Do we know how this ended up, if at all?

Frankly, I don't see where the guy was being sued. A letter from someone saying they're contacting their attorney does not constitute a lawsuit.

Was the image the OP put on his website offered for sale? I have some photos on my website which cannot be purchased, so I don't think it's that unusual.

Sure would be nice to know how this one turns out...


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## skieur (Sep 18, 2012)

unpopular said:


> Provided that the photograph is non-commercial and editorial, as well as several other provisions concerning ownership.
> 
> we all like to play Perry Mason from time to time. But seriously, at least do a _little_ research.



Why not follow your own advice for a change?

"For example, photographing and publishing a photograph of a sculpture or work of artistic craftsmanship that is permanently situated in a public place, or in premises open to the public, does not infringe copyright (s.65). This does not apply to other public art, such as murals. ....., you can also take pictures of buildings without infringing copyright."

the above is from Australia: one of the most restrictive countries related to photography. The US and Canadian act say the same thing.

"The Architectural Works Copyright Protection Act" and others from several states state some version of the following:" First, the owner of the copyright in an architectural work cannot prevent the use of photographs of the building."

The "knowledge" of copyright in your posts seems to be equal to the "knowledge" you "demonstrated" of your legal rights in other posts.

I think a little research on your part is long overdue.

skieur


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## Tight Knot (Sep 18, 2012)

Steve5D said:


> Do we know how this ended up, if at all?
> 
> Frankly, I don't see where the guy was being sued. A letter from someone saying they're contacting their attorney does not constitute a lawsuit.
> 
> ...


Hi Steve,

As of right now, I have heard nothing else from the emailer. Either way, I have removed the photo from my website. Yes, it was for sale, but to be honest, it was more of an oversight on my part, as A. It was not a good quality photo (the sculpture was really nice, but I did not get a good photo of it), and B. I had no idea that I wasn't allowed to sell such photos. 
This has been a really good learning experience for me in many ways, and I hope that it was nothing more than a real life seminar, that doesn't end up costing me.
If anything else comes up, I will update this post.


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## unpopular (Sep 18, 2012)

skieur said:


> Why not follow your own advice for a change?



Out of step - Page 1 - News - Seattle - Seattle Weekly

 Why do you have to be always right about everything. It's a frustrating position to hold when you're wrong about so very much.


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## skieur (Sep 18, 2012)

mjhoward said:


> Even in the US, you cannot photograph a copyrighted work and, as the main subject in your photograph, try and sell it. Whether you want to sell the photo or not, it IS on your site for sale right now. Landmarks and statues are 100% copyrightable. Hell, photographing the Eiffel tower at night is even considered copyright infringement because of the lighting design on it.



To be copyrightable, the work needs to be in a fixed form. This is written in the Copyright Act of several countries. A lighting or fireworks display is NOT a fixed form and therefore NOT copyrightable whether the owners WANT it to be or not.

By the way some works may be copyrightable but that DOES NOT MEAN that taking a photo of the work violates copyright.  The main example of this is architectural design.

skieur


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## skieur (Sep 18, 2012)

Covering an other item.  To violate Trademark law, "passing off" must take place.  Taking a photo of a trademark such as the coke graphic does not violate any trademark, however taking a photo of the coke graphic and then putting it on your own bottle of a brown, fizzy drink and "passing it off" as the real thing DOES violate trademark law.

skieur


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## skieur (Sep 18, 2012)

unpopular said:


> skieur said:
> 
> 
> > Why not follow your own advice for a change?
> ...



The low amount was due to the modfication of the work, not taking a photo of it.    Other details are not mentioned.

skieur


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## mjhoward (Sep 18, 2012)

skieur said:


> mjhoward said:
> 
> 
> > Even in the US, you cannot photograph a copyrighted work and, as the main subject in your photograph, try and sell it. Whether you want to sell the photo or not, it IS on your site for sale right now. Landmarks and statues are 100% copyrightable. Hell, photographing the Eiffel tower at night is even considered copyright infringement because of the lighting design on it.
> ...



You are ignorant:
Eiffel Tower - Wikipedia, the free encyclopedia


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## skieur (Sep 18, 2012)

mjhoward said:


> skieur said:
> 
> 
> > mjhoward said:
> ...



Not at all. France has a judicial system with a different history, different basis (guilty till proven innocent in criminal cases), etc. than any other western judicial system. That decision is POLITICAL in nature and violates international copyright agreements and other copyright laws in the other Euro countries. France has had "limited" success in trying to enforce its unique view of copyright.

You have probably not even noticed that my user name is French.  I obviously speak, write and read French so, you would need to be pretty "ignorant" to assume that I would not be familiar with the Eiffel Tower case.

skieur


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## JAC526 (Sep 18, 2012)

I wouldn't worry one bit until I actually got a letter from an attorney.

It sounds like a scare tactic to me.


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## Arkv (Sep 19, 2012)

Tell the sender that you will sue him for threatening you x)


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## unpopular (Sep 19, 2012)

skieur - you are totally misreading the "fixed and tangible" part of copyright law. This does not prevent transient art from being copyrightable, but rather things like "ideas".

Under your interpretation an improvised, one time performance is not copyrightable. This is not the case, and a lot of contemporary performance art is, in fact, improvised.


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## skieur (Sep 24, 2012)

unpopular said:


> skieur - you are totally misreading the "fixed and tangible" part of copyright law. This does not prevent transient art from being copyrightable, but rather things like "ideas".
> 
> Under your interpretation an improvised, one time performance is not copyrightable. This is not the case, and a lot of contemporary performance art is, in fact, improvised.



There is NO such thing as transient art. It must be in a "fixed form" to be copyrightable according to the acts of several countries including the US. "Ideas" are not copyrightable either unless they are in written or some other fixed form. One time performance must be in script form, video form, or some other recorded form to be copyrightable and prove/date its existence.

Proof, evidence and documentation are required in law. A copyrightable work does not exist without them.

To put it another way, ideas are NOT copyrightable but their form of concrete, fixed expression IS copyrightable.

skieur


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## Garbz (Sep 26, 2012)

And this is exactly why we have patents.


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## skieur (Sep 26, 2012)

Garbz said:


> And this is exactly why we have patents.



Yes, but as I pointed out, photography does NOT violate a patent, unless it is accompanied by "passing off" something false for the real thing.

skieur


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## Garbz (Sep 27, 2012)

What I meant was the whole point of being unable to copyright an idea is the reason why patents exist. In pretty much most of the world taking a photograph of a copyright work is not a copyright infringement.


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## Tight Knot (Sep 29, 2012)

Hi all,
Thank G-D, the issue has been clarified, and cleared up. I received a very nice email from the sculptor, and am pasting her email here, including my reply.

Dear Mr. Len,

I am the artist who created the sculpture "She" at  Park Hagalil. The park is NOT public. It is owned and maintained by the  city of Karmiel and is totally fenced, gated, closed at night, guarded  and admission is charged. By law, as the artist, I, and the city of  Karmiel hold the copyright on my sculpture there. Near the base of the  sculpture is a marker with my name and title of the work. It is against  copyright laws to post a photo of a sculpture (in a private park) on a  website used for commercial purposes without getting permission from the  artist or the city of Karmiel, and without listing artist's name and  title of the work.

The curator of the exhibition did e-mail you  and I'm glad that you took the photo off your website. We are not  interested in suing and it is not a scam. I will e-mail this information  to the Photo Forum website in the next few days and hope this clarifies  the issue.

Sincerely,

Merle Temkin (P.S. The photo was actually very nice).



This is my reply:


Hi Mrs/Miss Temkin,

First of all, I would like to thank you for contacting me directly, I really appreciate it.
I would like to start by apologizing for A: Using the photo of your sculpture on my website without permission, I had no idea that I wasn&#8217;t allowed, and B: For misnaming the sculpture, and not attributing it to you.
Unfortunately, when I took the photo, I did not see any markings or signs on or near the sculpture listing the title of the sculpture or the name of the artist.
My intent was not to rename the sculpture, but not knowing what the title was, I called the photo &#8220;reflective man&#8221; as I saw a human form that was reflective, as a way for me to locate the photo in the future. Had I known what the real title was,  I would not have put it on my website without having given it the correct title and attributed it to you. The truth is, I still would not have known that I was not allowed to display it for commercial purposes on my site, and am glad that I have now learned this valuable lesson. I have only been doing photography for 2 years now (right after we made Aliyah), and obviously have a lot to learn about the legalities involved.
I also did not know that the park is a private park. I just thought that this is the norm in Israel, that you have to pay for these parks, but that they are State owned.
I was at the park with my family on a Nefesh B&#8217;Nefesh picnic, and was captivated by your sculpture. It was getting dark, and I was not able to get a nice sharp photo of it, but still liked it so much (the sculpture, not the photo) that I put it on my website.
I have since seen your other works on your website, and have enjoyed them tremendously.

Again, I apologize for the above, and thank you for contacting me. If you would like I can email the photo to you in it&#8217;s full resolution. Needless to say, I will no longer display it on my website or on any other public platform. I would like to go back and take a better photo of the sculpture at some time in the future, and if I do, I will contact you and ask permission to display it (not for sale, but just to show the works of others that inspire me).

Thanks again,
Have a wonderful week,

Boruch Len.

PS. I will also post this on the photo forum, to clarify the issue.


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## The_Traveler (Sep 29, 2012)

Adult behavior on both sides and a seeming good result.


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## skieur (Oct 2, 2012)

It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes.  There have been legal cases in the US and Canada that back up that position.

skieur


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## jaicatalano (Oct 2, 2012)

I wouldn't worry. I have sued people in the past and won. Nothing comes of it unless it's headline news.


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## pixmedic (Oct 2, 2012)

The_Traveler said:


> Adult behavior on both sides and a seeming good result.



yup, very nice...now if only that happened more often here on the forum.


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## The_Traveler (Oct 2, 2012)

skieur said:


> It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes.  There have been legal cases in the US and Canada that back up that position.
> 
> skieur



this park is not in the US not Canada and the law is evidently not the same.


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## GooniesNeverSayDie11 (Oct 2, 2012)

mjhoward said:


> molested_cow said:
> 
> 
> > This whole thing sounds messy.
> ...




Copyright of architecture prevents copying architecturally, it does not prevent people from taking and selling photos of a building. Buildings can be trademarked. However, this does not always hold up in court.
There was a famous case of a man selling posters of the Rock and Roll Hall of Fame building, and the court ruled in his favor. (See : _Rock & Roll Hall of Fame & Museum v. Gentile Prods., 134 F.3d 749 (6th Cir. Ohio 1998)  )


_


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## skieur (Oct 3, 2012)

The_Traveler said:


> skieur said:
> 
> 
> > It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes. There have been legal cases in the US and Canada that back up that position.
> ...




Well to quote Isreali law: The reproduction of this architectural work, work of sculpture or work of applied art, is covered under the Israeli copyright statute (2007), which states that "Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of an architectural work, a work of sculpture or work of applied art, are permitted where the aforesaid work is permanently situated in a public place." (paragraph 23)

skieur


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## The_Traveler (Oct 3, 2012)

Does that same section cover displaying the reproduction for sale?


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## The_Traveler (Oct 3, 2012)

In reading the unofficial translation of the Israeli law, it seems that a display of the picture might fall under Fair Use but actually displaying for sale isn't allowed statutorily and any case is deferable to the courts.


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## markj (Oct 18, 2012)

How the hell did the curator get your email address?


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## exemplaria (Oct 18, 2012)

skieur said:


> It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes.  There have been legal cases in the US and Canada that back up that position.
> 
> skieur



The fact that people are allowed to pay to come in during certain hours does not make it a public place.  By that definition, every privately owned museum, stadium, concert hall or attraction is a "public place", and we all know that's not true.  

OTOH, I can find hundreds of photos for sale of "Cloud Gate" (the Chicago Bean), most of which do not mention the artist's name (Anish Kapoor, if you're interested).  I can also find plenty for Spoonbridge and Cherry in Minneapolis, or The Sphere in NYC.  So it appears if it's in a truly public place there's no issue.


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## skieur (Oct 18, 2012)

exemplaria said:


> skieur said:
> 
> 
> > It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes. There have been legal cases in the US and Canada that back up that position.
> ...



Yes, in fact every privately owned museum, stadium, concert hall or attraction is legally a "public place" since the public has access to it, if they pay to enter. You should spend the time I do, with the law. 

I should point out that the definition of a "public place" was made in the US Supreme Court in the Sony case several years ago, and it became part of intellectual rights and copyright treaties with other countries.

skieur


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## bunny99123 (Oct 18, 2012)

It is against the law to take photo's of art work unless it is posted other wise, although I myself have done so.  Art work of any kind is resprentation of someone's product.  Just as the photos you take.  Keep that in mind when photographing. Also, if this park is serious you would have received a certified letter from an Attorney...not a threat to be contacted by one. I agree, I would contact the park to see if it is a scam.  If not, just remove it from your website, not worth the hassle.


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## exemplaria (Oct 19, 2012)

skieur said:


> exemplaria said:
> 
> 
> > The fact that people are allowed to pay to come in during certain hours does not make it a public place. By that definition, every privately owned museum, stadium, concert hall or attraction is a "public place", and we all know that's not true.
> ...



Well yes we've obviously seen your deep knowledge of foreign law, what with being totally and completely wrong about the Eiffel Tower, but don't let that stop you from spouting off like you're an expert.  

Listen, neither of us is a lawyer, and what these definitions mean in a vernacular sense is often far different from what they mean in a legal sense.  The only legal advice I can give is "Stop pretending you're an expert on things you're clearly not" - no charge, but it's rock solid advice.


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## skieur (Oct 20, 2012)

Oh, well what did I say about the Eiffel Tower that was incorrect?
And you are saying that the US Supreme Court decision and definition on a "public place" is somehow not legal?

Obviously your argument is weak, if you have to put a spin on my so-called attitude rather than dealing with my post.

skieur


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## Ballistics (Oct 20, 2012)

exemplaria said:


> skieur said:
> 
> 
> > exemplaria said:
> ...



It's very hard to have a "debate" with him. He twists points and tries to add made up meaning to your posts and then tries to insult your intelligence based on his wild assumptions of said points that you never made in the first place. Your best bet is just to let him pretend he holds vast knowledge and ignore him. According to him, trespassing is a civil, and not a criminal offense. So that right there shows how much reading he does about the law.


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## skieur (Oct 21, 2012)

Ballistics said:


> exemplaria said:
> 
> 
> > skieur said:
> ...



Your best bet is to read your own posts and stop changing the context and going off on tangents in mid discussion.

skieur


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## Greiver (Mar 13, 2013)

bunny99123 said:


> It is against the law to take photo's of art work unless it is posted other wise, although I myself have done so.  Art work of any kind is resprentation of someone's product.  Just as the photos you take.  Keep that in mind when photographing. Also, if this park is serious you would have received a certified letter from an Attorney...not a threat to be contacted by one. I agree, I would contact the park to see if it is a scam.  If not, just remove it from your website, not worth the hassle.


The OP posted the email he got from the curator and his reply. It doesn't seem like it was a scam (or it was a really elaborate one), either way it's pretty much been settled.


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## nonamexx (Mar 29, 2013)

Greiver said:


> bunny99123 said:
> 
> 
> > It is against the law to take photo's of art work unless it is posted other wise, although I myself have done so.  Art work of any kind is resprentation of someone's product.  Just as the photos you take.  Keep that in mind when photographing. Also, if this park is serious you would have received a certified letter from an Attorney...not a threat to be contacted by one. I agree, I would contact the park to see if it is a scam.  If not, just remove it from your website, not worth the hassle.
> ...



I'm a practising lawyer for around two years and I know that copyright is an extremely tough field. I myself cannot comment on the legalities of these things without references and relevant court rulings.

But here's the point I would make, leaving aside all moral and ethical issues: if the artist is living in another country than yours, it would be very expensive and probably take a long time for any artist to get a court order against you. So you could, in practice, violate the copyright of another person living in another country if you are so minded with little to fear. Even before they can bring you to court, it would cost them a lot more money for them to sue than for you to defend it, since they would have to approach your jurisdiction to file the case and find a good enough lawyer in your country. Also conducting a trial would be expensive, since they would have to appoint a power of attorney to give evidence on their behalf or travel to your country for the case. It would make anybody think ten times before even filing a lawsuit against a person in another country. Most individuals would not bother, but they would try to use scare tactics to make you comply first.

And now, let us assume that even if they file a case in their own jurisdiction and somehow manage to get an ex-parte order, it would not be enforceable against you, since their country's courts cannot possibly enforce any order for your appearance or execution of the order in any case. Besides even ex-parte orders can normally be set aside on application by the defendant in reasonable time and the trial would be re-commenced. All this is speculation. The most probable scenario is that  the case would be dismissed at the outset for want of jurisdiction by a sensible judge. 

Even in criminal cases, countries are finding it tough to enforce the attendance of accused of different nationalities. In civil suits it would be even harder, because an individual has to go through that process.

Of course, if the other person is very rich and has lots of resources to engage a reputable attorney in your country and also appoint a power of attorney and pay the costs of conducting the case by remote control, then that's a different issue.


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