Re: filmscanners: OT more copyright questions

[Terry Carroll <carroll@tjc.com>]

On Wed, 21 Mar 2001, Richard wrote:

> If I were to take a series of photographs of sculptures around my local town
> and have them printed them up as postcards to sell, would I have to get
> permission from either the sculptor or the governing body who commissioned
> the sculptures in order to do this? Or am I within my rights to sell images
> of anything I photograph.

In general, copyright includes the exclusive right to reproduce a
copyrighted work in copies.  A copy is any material object from which the
work can be perceived, reproduced or communicated, either directly or with
the aid of a machine or device.

Sculptures are subject to copyright.

The copyright owner is initially the author of the piece, generally the
sculpture, but in some cases, it could be a hiring party; and an author
can also assign a copyright, so the person who sculpted it may not be the
person from whom permission is required.

So, yeah, if you photograph a copyrighted sculpture, absent authorization
from the copyright holder, it is infringement both to reproduce and
distribute the photos.  Technically, it's infringement even to make the
first photo, since that qualifies as a "copy."

Whether you sell the copies or give them away doesn't much enter into the
basic question of whether it's infringement, although 1) it gets factored
into the analysis of whether the use is a fair use, and if you have some
other factors that support a fair use argument, this is a good factor to
have on your side and 2) it can make an infringement that would otherwise
merely be civil (subjecting you to a lawsuit) into a criminal offense
(although most federal prosecutors have better things to do than prosecute
a case like you describe.

I note that the law is slightly different if the object in question is a
building rather than a sculpture.  For architectural works, there is an
exception for reproducing a view of the building from where it can
ordinarily be seen by the general public.

Now the weaselly disclaimer:

The above is a general discussion of a particular point of copyright law.  
I am not your lawyer, you are not my client, and the above discussion is
not intended as legal advice.  If you have any question how the above
discussion may apply to you in a situation similar to that describes
above, you should confer with a competent legal advisor with whom you have
an attorney-client relationship and who advises you after a full
disclosure of all material facts, circumstances, and risks attendant to
your particular situation.  


-- 
Terry Carroll       | No representations, warranties or characterizations
Santa Clara, CA     | regarding any actual university, including any named
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