Several years ago I arranged to give a seminar by conference call. I gave verbbal permission to the conference organizer to record the lecture and distribute copies.
A 99er forgot the link? For shame!
Cecil’s comment:
while, of course, being correct and spot on, as The Master always is, got me thinking about something else. I’ve heard of photographers who take pictures of graffiti (apparently graffiti is now considered an “art form”) and publish the pictures in a book or something. This makes me wonder, the graffiti is the creative work of the one who made it and thus can’t be published, but photographs are of course creative works in their own right, and the property of their own creators. So can somoene take a photograph of a work that someone else owns (like the graffiti) and publish it without consulting the graffiti artist?
Of course someone can. But I presume you’re asking whether it would be legal. The answer depends on jurisdiction.
In some places there is a doctrine (known in Germany as Panoramafreiheit, loosely translated “Freedom of Panorama” in English) that makes allowances for depictions of creative works displayed in public spaces. In the U.S., this allowance applies only to works of architecture; sculptures and paintings and the like are not exempted from copyright protections in this way. In other countries, architecture and art are both exempted.
So, in Germany, you can walk down to a public square and take a picture of the statue of the city founder and publish the photograph under whatever licensing you care to, without having to compensate the sculptor. In the U.S., you can do that with buildings but not with artworks.
So, assuming your hypothetical question is set in the United States, the answer is that that would be illegal. It would be legal in some other jurisdictions.
HOWEVER. Your average graffiti artist is unlikely to sue in such a situation, as doing so would be exposing him/her to prosecution for vandalism. So, in theory, no, it’s not legal, but in practice, the chances of getting away with it are high.
Powers &8^]
Edited to add: Let me clarify that by “illegal”, I don’t mean the police are going to come to your house and arrest you. Violating copyright is purely a civil matter, not criminal.
I had no idea. This is why I love this place. Regarding incidental filming or photography of art in the U.S., there is also the *de minimis * doctrine, which acsenray and I discussed in a currently missing staff report. Here is an excerpt:
Hmmm… I own 2 books, published about 15 or 20 years ago, specifically of graffiti - one on urban graffiti, mostly NYC and LA; the other of New York subway trains (before Giuliani). Much of this stuff was “art” as much as anything produced today is. Never heard that the guys who compiled these got into any trouble from the artists, and in the introduction they make no mention of having to pay the artists.
But again, as you say, anyone who comes forward with a claim will likely end up doing time for vandalism. Plus, even so, there must be some statute of limitations on these kind of claims as well as on vandalism. Also, I wonder if the publishers would get out of the claim with a “Son of Sam Law” defence, that the artists can’t profit from their crimes?
It was a given bit of wisdom in the early days of the internet that anyone who does not enforce their rights, loses them. This was more aimed at trademarks than copyright- not sure the same applies. Rolls Royce, for example, will send cease-and-desist letters to anyone who takes their name in vain (“the rolls-royce of plaid jacket makers!”) Owners of various popular culture - star wars, marvel comics, rock bands, TV studios, etc. - also hit fan sites with cease and desist letters. (sure, smack your strongest customers!)
The fear is some court precedents (IIRC) that say “use it or lose it”; that if the owners don’t make an effort to defend their rights, they cede them to the public domain. They can’t come back after 5 or 10 years of doing nothing and insist the world scrub it’s content of offending uses. Hence words like kleenex and fridge have gone from being brand names to generic names.
Aspirin, IIRC, was a special case in that the german Bayer company was seized as war booty by the US government in WWI and resold, so the name’s rights got lost.
Meanwhile, congrats to Level3Navigator, not only for having his post (Can I legally publish posts made by someone on a message board? - Cecil's Columns/Staff Reports - Straight Dope Message Board ) used as the question to open Cecil’s column, but for being illustrated by Slug. (OK, perhaps the person isn’t Level3Navigator, but the screen certainly names him.
Gfactor: Regarding the de minimis defence - I assume an additional factor is how much discretion the filmmaker or whomeever had in the inclusion of the art?
If I film in Times Square, I can’t help but include huge amounts of copyright material of dubious artistic value but definitely copyright. The owners put it on deliberate display. If I decorate a set with a piece of art, or select an interior which includes art, I assume (or the court assumes) I have made a conscious decison on some level to actively include the art for some reason. I.e. it looks good, it adds to the atmosphere, therefore I am in some small measure “exploiting” the art rather than just encountering it.
However, I do find it hilarious when these reality shows blur out posters and T-shirts while running around in the real world.
I wish people would stop perpetutating this falsehood.
Yes, a more accurate statement would be: violation of a copyright may be a criminal offense, and will also give rise to a civil action by the holder of the right.
Cecil Adams in Who controls the content on an Internet message board?
Reread the bold sentence. Shame on you, Cecil!!
We already have kids these days who cannot read and write properly. Heck, just read and listen to the young whippersnapper alleged journalists today who cannot properly write a sentence. Now you’ve gone and done the same. Shame! Shame! Shame! We expect better from you.
Look, if you’re going to dangle the preposition, at least do what the late Johnny Carson did and wear a long coat so no one will notice, because right now, your naughty bits are showing.
There is nothing wrong with leaving a preposition at the end of the sentence, as Winston Churchill famously pointed out.
As C. S. Lewis said, “a Frenchified schoolroom superstition”.
That only applies to trademarks. Copyrights and patents don’t work that way at all.
There is, of course, the practical exception that if the copyright holder is being lax in prosecution because he doesn’t care or fears prosecution if he comes forward, the work is effectively not protected. My point, though, is that a period of laxity does not prevent the rightsholder from coming forwards later.
Since IANAL, I am curious what the judge usually thinks of the concept that the rights-owner deliberately allowed such a misuse and later sues. IIRC that was an issue with some software patents, where the though was that the owners were going to let their “idea” become heavily embedded in poular web protocols and then come after everybody when it was too late and too expensive to change.
Somewhat similar to what happened to GIF on the internet.
That’s covered by some equitable defenses, primarily laches: My Bookmarks
But it requires the individual defendant to show that it was prejudiced by the delay in bringing suit. That’s different from the process by which a trademark can become generic or descriptive though the owner’s inaction. 321 F2d 577 King-Seeley Thermos Co v. Aladdin Industries Incorporated | OpenJurist The latter affects the validity of the owner’s intellectual property rights; the former only affects the plaintiff’s rights against an individual defendant.
And I’m still thinking about your question about the de minimis defense.
I’m just wondering if Cecil was thinking of me with his Bangkok reference at the end.
Wow! Yes, that is me that asked the question, and I am so ever humbled to have my question answered by the Master (and the illustration from Slug is the frosting on the cake)! I’m primarily a lurker, only contributing an answer or question once in a blue moon. And here I was just trying to understand the complexities of copyright law. I’ll be interested in the legal outcome when this issue comes to court.
Thanks, Uncle Cecil! This made my year!