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Discussion
10 Years Ago
This photo was taken at a sandcastle competition in Parksville BC. It was one of the entries, I thought is was really cool so I took a picture, intent was not sell originally, but once I edited I thought it was interesting enough to post on here.
The question is, does copyright apply to sand sculptures?
Reply Order
10 Years Ago
Certainly copyright applies to sand sculpture as much as to any other kind of sculpture. The question is does your photo infringe that copyright?
10 Years Ago
I would bet money that the original artist of the sand sculpture has also taken their own picture of their work. You may want to take that fact into consideration. BUT…, if the sculpture was done on a public beach and you took the photo from the vantage point of that beach, It may be ok since it was in public domain.
10 Years Ago
I don't know about that.
"Under Section 32.2 (1)(b) of the Canadian Copyright Act 1985 (PDF, 786 kB), it is not an infringement of copyright for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work … (i) an architectural work (defined as any building or structure or any model of a building or structure"); or
(ii) "a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building".
Canadian law was originally derived from UK concepts and some of the United Kingdom section may therefore be of relevance, in particular the restricted legal meaning of "work of artistic craftsmanship". Some non-sculptural works can qualify for Canadian FOP under this clause, such as Body Shop Yonge.jpg for example. The freedom provided by the quoted section does not apply to typical two-dimensional works such as paintings, murals, advertising hoardings, maps, posters or signs. These cannot be uploaded to Commons without a licence from the copyright holder even if they are permanently located in a public place, unless they are in the public domain." http://commons.wikimedia.org/wiki/Commons:Freedom_of_panorama#Canada
A beach is a public place, but is a sand sculpture ever permanently situated. It doesn't last long. I don't know the answer.
10 Years Ago
"Freedom of panorama, often abbreviated as FOP, is a provision in the copyright laws of various jurisdictions that permits taking photographs or video footage, or creating other images (such as paintings), of buildings and sometimes sculptures and other art which are permanently located in a public place, without infringing any copyright that may otherwise subsist in such works, and to publish such images." http://en.wikipedia.org/wiki/Freedom_of_panorama
Canada, which is where I'm assuming the sand sculpture was, has such a provision.
I quoted it below. It does depend upon whether the sculpture is permanently situated in a public place.
10 Years Ago
I see so many reproductions of photos on here from john F Kennedy to other famous figures, impossible to be originals. Then totally edited onto poters, cards, into other media. Are they then also tampering with copyright infringements?
10 Years Ago
In the U.S. quite possibly. In the U.K. or Canada, perhaps not. http://www.lawontheweb.co.uk/Media_Law/Copyright_Law/Public_Art
10 Years Ago
Frank Gaylord got over a half a million dollars out of the Postal Service for infringement because they put his Korean War Memorial sculpture on a stamp without his permission. I might add the stamp looked like a twist on the sculpture to me. But that didn't save the Post.
http://petapixel.com/2013/09/23/sculptor-awarded-685000-photo-korean-war-memorial-used-stamp/
10 Years Ago
There's a chance of objection if the art was going to be used commercially (to sell a product or service), but as a fine art piece she should be perfectly okay.
Dan Turner
Dan Turner's Seven Keys to Selling Art Online
10 Years Ago
I find it odd that these are built on public beaches with public sand and the artist take donations but I can't sell my photos on the beach or even on a public street. But, if someone sends a cease and desist I would happily oblige. So technically they are infringing on my rights as an artist if they allow this guy to sell or make money from his art in a public place but yet I can't sell or display mine for cash on a public beach or street! Hmmmmm.
10 Years Ago
Roger I have no idea, I don't even know if it's displayed or on a pamphlet anywhere. I do notice that some of the very skilled come from different areas of the island and parts of the States, and then some are just volunteers who have the know how and put something together to attract a crowd.
If it makes any difference, I haven't sold any of this print, it has just been brought to my attention that 'maybe' I was infringing on some copyright law.
Oh and may I add that not anywhere did it say that we were not allowed to bring in cameras or take pictures. But then again, I'd be mad if someone took a picture of a picture of mine and stared to sell it....
I'm torn on this one, especially when I see other prints on here for sale of famous dead people that I know the photographer was not there to take the original, but still using a photo program to edit and make it look like an original for sale.
10 Years Ago
The answer is purpose... But first you need to consider. when you snap the shutter you are assumed to have copyright on that image whether you sell it or not. The same goes to the individual artist that made the sculpture. He has copyright over it and it's up to him/her to release it to you.
Purpose. Editorial versus sales. In stock photography you can sell an image to a newspaper and sometimes a magazine because its editorial (with no recognizable people in it). But when you enter an image into Getty's catalog to sell this image you will be hit in the face with legal issues.
Is the object/building/person recognizable, yes? then get a property/personal release. The fact that it was on a public beach only means you are allowed to photograph it freely. Not use it to make money without asking the artist, IF you can use it in a manner that will allow you to make money.
If you make money on someone else's creation, most artists will also want something in return. If I take your image and change it so that is no longer looks like your original work (derivative work) And I start selling it. You would be very upset if you were not getting a cut... OR would you say well, it really doesn't look like my image anymore so you can make all the money you want off my image and not pay me anything...
I somehow doubt you would feel that way, I know I wouldn't... thoughts?
10 Years Ago
Jef - Getty is a major news photo source for all media. Submitting to them is the same as submitting to a newspaper. They will put it in the editorial section. But I guess you meant Getty's Commercial catalog.
Craig - I will look into it more , but I believe selling art in public places is protected under freedom of speech. That is why in many cities you will see artists selling on public squares. However most localities will run you off anyway.
Vinka - As long as you were on public property, the copyright holder of the sand sculpture cannot stop you from selling your photo as art. Or news for that matter. But not for commercial use.
I am not a lawyer. This is my understanding and how I operate.
10 Years Ago
I am going can go off topic to address the question of selling art in a public places. It seems that while lower courts have upheld this as a First Amendment right, the Supreme court has not ruled on it. So it would depend on where you live. Of course if you can get some lawyer to take the case, go out and sell art in a public place with no permit and fight it to the Supreme Court. You will probably win. An artist did win a case against New York. It seems the Supreme Court only upholds these things when you lose in lower courts and appeal. And so far most have won.
http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1214&context=mslj
10 Years Ago
Vinka,
I wouldn't take what sells on FAA as any indication of what does and doesn't infringe the copyrights of others. There's lots of infringing images here.
So about sculpture. . . Yes it is copyrightable. No, I can't imagine why sand sculpture would be an exception. Therefore, I'd operate on the assumption that it is copyrighted.
Reproducing a copyrighted piece of art work is an infringement. That means that if you take a picture of it and sell it, you must make sure your picture falls into an exception to the law. There are two main possibilities:
(1) Freedom of Panorama laws which allow the reproduction of sculpture or building permanently placed in public. Not all countries have this exception, so it really matters which country the sculpture was in;
(2) Fair use is a legal questions that is decided by the courts based on a number of factors. It is not a bright line test. Here's an article which describes the considerations the court uses in determining whether a copy is "fair use." http://fairuse.stanford.edu/overview/fair-use/four-factors/ Wikipedia has an article about this as well. http://en.wikipedia.org/wiki/Fair_use
There may well be other exceptions that might apply.
10 Years Ago
Here's an easy solution...
Go to the beach and build your own! How hard could that be???
10 Years Ago
Since sculpture which is not functional is copyrightable, my guess is the question of whether ice sculpture is copyrightable has to do with whether the sculpture is used to keep things cold. If it is, it's not copyrightable. If it's just to be decorative, why then yes is copyrightable. There is no longevity requirement in the copyright laws that I can see.
10 Years Ago
John funny, this stood about 10ft hi and 5ft wide, AND I'm not that talented!
I am struggling on what the right answer is, i guess it comes down to it, this was sand sculpture in a public place, there was no rules or specifications of copyright anywhere. Also, funny there are many postcards in town displayed with various sculptures from many diffrent competitions of years gone by, none specify artist, but oddly copyright the photo.
I have decided that because it would make upset if someone used my art without permission copyright or not. This coming summer i will definitely have a releasd form with me for permission to display or possible sale.
Thank you all or a very interesting discussion.
10 Years Ago
@Vinka. Perhaps if you offered the sand artist a copy of the picture, that would both serve as compensation and give them something for their work and therefore a reason to sign a release?
10 Years Ago
@ Bradford, thanks! I reviewed the local laws and they just make it very difficult to say the least. There are a certain number of designated spaces with a certain number of spots available and the individual must go through a tedious process that may or may not be approved 10 days prior to when you want to use that designated spot.
The city’s municipal code does bar residents from selling merchandise in public parks and beaches, unless sales are protected by the First Amendment. Sales protected by the First Amendment are nonetheless regulated by the city manager.
http://voiceofsandiego.org/2013/05/15/permission-to-peddle/
10 Years Ago
lol @ John= build your own!! But that leads to another point which is not all photographs are created equally. We all know the popular subjects with 100,000 images will not all sale. Why is that? What makes one image stand out and sale more than others? Just because there is a photo of it doesn't necessarily make it marketable. So, with that said why should that not be taken into consideration that the buyer is purchasing the skills of the photographer and not just the image itself?
10 Years Ago
Craig,
Also, while I didn't intend to, I think my suggestion to build your own brings up a point.
I wouldn't build my own. To be honest I COULDN'T build my own. It probably takes a lot of practice and skill and hard work to build one of those things. Same could be said of a metal statue or a wood carving or even an ice sculptor. If it was easy, more people would do it.
So why should anyone else profit off that artist's hard work?
I am a photographer but part of me would say why should I make money off that hard work? All I did was "push a button" while the sculptor had to manipulate a literal ton of sand to build it. Shouldn't they make all the money?
Because in the end, even though my post about building your own was a bit tongue-in-cheek it is true. If one REALLY wanted to sell such shots they COULD build their own creation and photograph the hell out of it and limit anyone else from doing so. But, of course, that would take ALOT of work and who wants to take shots of a sand sculpture that bad?
Or, as an alternative, find the sculptor and commission them to build a sculptor for you that you can shoot and sell images of...exclusively. Or, like Vinka said, get permission. Asking permission is easy, yet so few people seem willingly to try.
10 Years Ago
Very few things photographed are the direct result of the photographer. Whether it is a building (which now are trademarked and copyrighted) if the designer so choose. Or a photo of the fruit stand that someone got up early to arrange. Or the golf course that someone maintains in an immaculate condition. I guess I need to take down 90 percent of my photos. That train that was designed and painted with the BNSF logos as well.Why should I benefit from the person that built the train, maintain the tracks and paint it? I have no problem with my photo of the sand castle built on a public beach built with public sand and water where the artist is receiving compensation by tourists. I do occasionally drop a buck in his cup but not everytime.
10 Years Ago
Clearly a release form will resolve these issues, protects everyone. As for compassion that's another issue, what if the photo doesn't sell like this one, then I'm out of pocket?
I don't want to be chasing people for more than a signature, if they agree to the terms of possible sale or display, I'm in the clear!
10 Years Ago
But we are essentially talking about taking pictures of art. I know one could say that the building is art and the train is art, etc.
Would you feel the same about photographing a painting in a museum and selling it? I am not even getting into the legal aspects. Would you feel you accomplished something by doing that?
What if I took a shot of one of your shots and sold it here? I think you would...rightfully...be upset.
10 Years Ago
Vinka,
If you have a smart phone there are some cool aps for releases on there. If you are interested I can find the name of the one I have for you. It is really good, it will attach an image of the subject and email the contract to the person while you are talking to them.
What I often do when I talk to people is promise them a print in exchange for their access. Usually that is more than enough!
10 Years Ago
Copying something and capturing a scene with something in it is totally different! Art is very broad. And your emphasis was on benefitting from the hard work of someone else. Which goes even beyond art if you want to be technical. Where would any artist on FAA be without the hard work of others?
10 Years Ago
Agreed John, this is what I was shrugging with in earlier parts of this discussion, and this is why I concluded with the release form for future photos such as this one.
9 Years Ago
"Clearly a release form will resolve these issues, protects everyone".
While releases do solve issues, asking for permission when none is needed is surrendering your First Amendment right instead of using it.
9 Years Ago
In CANADA, it is not an infringement of copyright to photograph "a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building."
U.S. law does not specifically say anything about sculpture, and that has sometimes been a problem.
However, in the U.S. Courts have disagreed as to whether photographs of copyrighted works are derivative works and thus infringe on their copyright if photographed without permission.
Again, Vinka should be perfectly fine to sell her photo as fine art.
Dan Turner
Dan Turner's Seven Keys to Selling Art Online