# Art photography.



## highweights (Feb 26, 2018)

Hello everyone. This is my first post and I've been looking for a place where I can get some help with a very particular subject since I haven't been able to find the info online anywhere. Recently I decided to make a living out of my photography and leave the advertising business forever, hopefully. I like to be very diverse with my work but lately I've focused on abstract photography and that will be the work I want to sell for decorating personalized spaces and galleries, since it has a similar visual quality to those of paintings. A lot of my work comes involves macro techniques and closeups from my environment, and that sometimes happens to be museums or such. I have several photographs which are abstracts of sculptures and which are edited in a way where it is extremely hard to tell the originating piece of art, even by the owners, coming to be something entirely new. Now my question is: can I sell this photographs? They never show the sculptures in its entirety (only a small portion of it) and never in their original form since they do not intend to be reproductions of other's work. Do the artists own the rights to my photography even in this situation? Am I missing something? I'm at a turning point in my profession and this question is very important for me to take the next steps, so I greatly appreciate any help you can provide! Thanks again!


----------



## Ysarex (Feb 26, 2018)

Lawyer.

Joe


----------



## highweights (Feb 26, 2018)

Well, I feel like there shouldn't be a problem since it's something new and it's entirely different to what the artist meant with the sculpture to the point that it's hard to identify. Like with buildings, photographs can be sold of this in some situations. I found this related to buildings:

"In order for a trademark owner to stop you from reproducing a photograph of their building, the following would have to be true: (1) the building would have to have an identifiable, distinctive appearance;"

So what if it's not identifiable?


----------



## Dave442 (Feb 26, 2018)

In most cases you are making an image of an artwork produced by the artist and then the rights to that artwork are purchased - the owners of the rights to the artwork usually like to protect their investment in that artwork. As highweights noted, ..."identifiable, distinctive appearance;" - this can have one meaning to the casual observer, but to the artist or owner that knows every detail it may have another meaning, they may feel that it is just a derivative. 

Just the potential for a lawsuit could discourage potential large customers from displaying such images.

I like your images and it would be worthwhile to sit with a lawyer to make sure you can offer a commercial product.


----------



## highweights (Feb 26, 2018)

I appreciate you liking my work, Dave, and thank you for your reply. I haven't reached a lawyer yet as that implies high costs and I can't cover that at the moment, so I felt it was worth a shot looking for some help online. Likewise, I found this on another forum, which has an opposite opinion to this and seems legit:

"If a photographer photographs your sculpture, you still own the rights to the sculpture, but the photograph is _his_ intellectual property and has all the same protections your sculpture does. This falls under the heading of "derivative works," which are perfectly legal. If, on the other hand, someone were to make duplicate casts of your sculpture and attempt to sell them without your authorization, then that would be a clear violation of your copyright. Similarly, if you were to take the photographer's photo of your sculpture and reproduce it without his permission, you'd be violating his copyright, even though your sculpture is the subject of the photo. It is the _expression_ of any original work that is protected, not the underlying idea. I could shoot a bookful of pictures of Henry Moore's sculptures and sell the book as my own because the book and the photos are my own creations, not Moore's. If I slipped one of John Hedgecoe's photos of Moore's work in with my own without his permission, he could sue my pants off. The key point here is that a photograph of your sculpture, whether authorized by you or not, is the photographer's intellectual property. His rights extend only to the photo, though, and do not include any rights to your sculpture, just as your rights cover only your sculpture and do not extend to include the photographic record of it made by someone else. If you shoot a photo of your own sculpture, you own the rights to both the sculpture and the photo. It's all about who the original author is."


----------



## carlronschke (Feb 26, 2018)

Sent from my NUU_M3 using Tapatalk


----------



## webestang64 (Feb 26, 2018)

Couple of articles on the subject.....

Photograph of Sculpture Is Not a Fair Use |

Copyright and Taking Pictures of Sculptures – CJAM


----------



## Derrel (Feb 26, 2018)

highweights said:
			
		

> Here's the link to my Instagram profile so can see what I'm talking about:
> Iván Hoyos Freyre (@ivanhoyosfreyre) • Instagram photos and videos



Very nice Instagram photos. Unfortunately, in today's world, the conversion of on-line images to sold images is likely about 0.0000001 percent. These days people are not buying non-personalized images very often. Abstract, artistic images are not very sale-able. You'd do far,far better shooting nude sets and licensing them to internet sites. Or being a wedding photographer. Or a family photographer. Or a maternity photographer.


----------



## Dave442 (Feb 26, 2018)

I agree with who owns the rights to the sculpture and the rights to the photo. However, I think the Derivative should be Transformative for your use. I think many of your images are Transformative, but some are just a shot of some detail and I don't know if that could fall into Derivative (where the artist could claim exclusive rights to all derivatives made from the original work). 

Years ago my mom did a very large series of Collages that were all made from very small images cut out of her large stacks of art magazines (a chair, table, window, etc. each taken from different images and assembled into a collage - the overall theme was time). Those were displayed and sold in galleries and she told me they were transformative works. I think you are doing something similar - the processing of the original image into something different. It just seems that if your goal is large scale commercial use of the images that you need to be certain.


----------



## highweights (Feb 27, 2018)

webestang64 said:


> Couple of articles on the subject.....
> 
> Photograph of Sculpture Is Not a Fair Use |
> 
> Copyright and Taking Pictures of Sculptures – CJAM


Thanks for the articles, webestang64, I had read them before! 



Derrel said:


> highweights said:
> 
> 
> 
> ...


Thank you, Derrel! And fortunately, I have found my market. I will start with a couple of photos I've posted already but the main goal is to actually create personalized images for each client. I'm already in business to become part of a catalog next month, but I want to be sure I'm not getting myself into trouble with some of the photos.



Dave442 said:


> I agree with who owns the rights to the sculpture and the rights to the photo. However, I think the Derivative should be Transformative for your use. I think many of your images are Transformative, but some are just a shot of some detail and I don't know if that could fall into Derivative (where the artist could claim exclusive rights to all derivatives made from the original work).
> 
> Years ago my mom did a very large series of Collages that were all made from very small images cut out of her large stacks of art magazines (a chair, table, window, etc. each taken from different images and assembled into a collage - the overall theme was time). Those were displayed and sold in galleries and she told me they were transformative works. I think you are doing something similar - the processing of the original image into something different. It just seems that if your goal is large scale commercial use of the images that you need to be certain.


I am trying to sell a couple of the transformative ones, not all the work on my Instagram. If your mother was able to do that without any legal issues, seems like I can do the same like you say. I'm not trying to do them large scale, actually just sell each piece once for one specific client and move on to the next, giving each piece of work the most value possible.


----------

