7.3.08 MASSIVE INFRINGEMENT

Metroland infringed a bunch of copyrights last week!

Last Thursday an artist / friend / client left a message on my voice mail: “Take a look at Metroland and then call me.” I could tell by the tone of his voice that something was definitely up. So I grabbed a copy and immediately saw what it was—it was the summer fashion layout.

Every shot involved a piece of public art. Models in summer duds were splayed around sculptures by local artists like Leigh Wen, mi Chelle Vara, Jim Lewis and Peter Barton, all part of the Downtown Albany BID’s “Sculpture in the Streets” exhibit. And every shot infringed the artists’ copyrights in their sculptures.

So you’re probably thinking “Hey! Wait a minute! Those things are out on the street! You mean we can’t take pictures of them? This is silly!”

I agree it’s silly, and that’s part of why Metroland won’t get in trouble, but here’s the deal: each sculptor has a copyright in his or her work, and that means each has a bundle of exclusive rights, including the right to display the work, the right to make derivative works, and the right to make and distribute copies. By submitting the sculptures to Downtown Albany BID, the artist impliedly gave BID permission to display the work. But that’s about it. The artists didn’t give Metroland, or anybody else, the right to create or reproduce two-dimensional versions of their three-dimensional works. In other words, they didn’t give you permission to take pictures of the sculptures, or use them in fashion spreads.

In public art contracts that I’ve dealt with, there is usually an explicit grant from the artist to the sponsoring entity for the entity’s use of photographs of the work for promotional or fundraising purposes. But I’ve never seen a grant like that to the general public.

This certainly didn’t occur to Metroland before running the spread, and that’s not surprising. Metroland even credited all of the sculptors on page 23 of last week’s issue, which doesn’t excuse the infringement, but it shows at least an intent to try to do the right thing. I wonder how many of the sculptors even batted an eye at this use of their work, given that the purpose of public art is to engage the public. It’s not like my phone was ringing off the hook, and had there been a big controversy, I’d have heard about it from the artists, or from Metroland, or both. The artist who called me mentioned being perplexed as to whether this was even an issue, and just wanted to discuss it with me.

I suppose if the sculptures had been used in advertising or something tasteless, the offense would be a little more obvious. But folks tend to assume that art that’s out in public belongs to the public, and that’s not an irrational thing to think. I mean, how many local bands, looking for a change to the usual urban street / old brick wall promo photo, have come down to the Empire State Plaza and done photo shoots around the sculptures there? Like, maybe, every one? And the “Sculpture in the Streets” exhibit makes for a nice backdrop for a fashion shoot. But it’s still infringement, if the artist wants to get porky about it.

What makes this even weirder is that the law allows the non-advertising publication of photos of people shot in public places without permission. This means, yes, the sculptures have greater rights than people! Strange but true! The law says folks don’t have an “expectation of privacy” when they’re out in public, so it’s OK to photograph them and publish the photos. The sculptures are protected by copyright, and one can’t copyright one’s own image, not that people haven’t tried.

What would happen if one of these artists got all lathered and lawyered-up and decided to make a federal case out of this? Other than the artist looking pretty dweeby, not much. First, the sculpture would have to have a registered copyright before this thing could go to court, and the registration would have to have preceded the infringement for there to be any possibility of a significant damage award. Then, unique sculptures like these aren’t the sort of thing artists rush to get copyright registrations for, it’s just not necessary. Second, it’s hard to see any court being terribly moved by the gross injustice of having a work used in a fashion shoot without permission, so the likelihood of a big damage award is pretty slim.

So, if you’re one the sculptors and you’re all PO’d about this, don’t call me. Besides, I’m a little conflicted out. Ya think?