Photographing someone else's art .... where do you draw the line?

[bobt]

Here's a philosophical question for you.

A lot of people tell us that entering a photograph of someone else's art is not a legitimate competition entry, BUT ......

Where do we draw the line, and indeed is there a line?

Is there a percentage of that image which must be your own work? Or is the way in which you capture it in fact your own work?

If the art is only a part of the image, then how greater a part must it be before it crosses that line? What is the difference between photographing an artistic building or an art work? Is there a difference?

Is photographing graffiti photographing someone else's art? How about if it is in an alley way and is central but not the exclusive focus?

I find that an interesting grey area (possibly because I have one winning image which is 100% someone else's art, re-composed in my own photo).

There are legal aspects here, but also the whole idea of where the border lies between recording or re-imaging art.

[ameerat42]

If this is for submitting such a photo as a competition entry...

- then if it's a standalone artwork in the likes of a gallery, it is not yours to submit;
- but if it's the likes of a sculpture-by-the-sea, or a statue in a park... and you impart some special view
with your photo, then yes. The same goes if the artwork is incidental to the photo, whether in a gallery
or in "public";
- graffiti? - Oh, you must mean "gravy"

[bobt]

If this is for submitting such a photo as a competition entry... then if it's a standalone artwork in the likes of a gallery, it is not yours to submit;

So are you saying that's just a rule here, or everywhere?

[ameerat42]

No, I'm not saying that's a rule here, just answering your "Here's a philosophical question for you." with my ideas.
Edit: I took it to mean any competition entry.

The nub of the rules here are, as cited:
- From General Rules:
"[20] Any photograph a member presents on Ausphotography, whether by uploading to the site or displayed directly within the site using the IMG tags must be taken by and copyright owned by the member. The only exception..."

- From Comp Rules:
"9. The photographs entered must have been taken, and edited by the member. Use of someone else's photograph, elements, composites or textures will result in disqualification and may result in a permanent ban from Ausphotography."

[ricktas]

There is actually a section of copyright law related to this exact question. Let me go see if I can dig it up

[ricktas]

Here is a summary:

Photography and the arts

Sculptures, monuments and artwork may be protected by copyright. Unless an exception applies, you need permission from the copyright owner of the work. Exceptions to this general rule are found in the Copyright Act. For example, photographing and publishing a photograph of a sculpture or work of artistic craftsmanship that is permanently situated in a public place, or in premises open to the public, does not infringe copyright (s.65). This does not apply to other public art, such as murals. If the public place is a gallery or museum, remember that your rights to photograph may be limited by the conditions of admission on your ticket. As previously discussed, you can also take pictures of buildings without infringing copyright.
Copyright and trademarks

You may be infringing copyright if you photograph the whole or a substantial part of a literary, musical, dramatic or artistic work, if the work is still protected by copyright. For further information see the Arts Law information sheet Copyright for a discussion of whether there is a reproduction of a substantial part of the work (which is the test for an infringement of copyright) and the consequences of the use of the work only being incidental to the main subject of a photograph.

Photographers are often concerned about taking photographs of trade marks, for example taking a shot of a streetscape that contains advertising or company logos on the side of buildings. A registered trade mark owner has exclusive rights to use the trade mark and to authorise use of the trade mark in relation to goods/services for which the trade mark is registered. Taking a photograph of a trade mark should not involve trade mark use and is not trade mark infringement as the trade mark, as it appears in the photograph, is not being used as a "badge of origin" (that is, a use that indicates the source of good or services). Also consider that there may be copyright subsisting in the trade mark if it is a logo containing an artistic work.

Source: https://www.artslaw.com.au/info-shee...aphers-rights/

[bobt]

Hi Guys, thanks for both of your comments - it's an interesting can of worms really. I've won a couple of comps with a close-up of a sculpture which was in the arts centre where photography was freely permitted. I'd post it here, but it would probably get deleted.

I'm interested in how you interpret our rule here which says that "Use of someone else's photograph, elements, composites or textures will result in disqualification". The "elements or textures" part of that is a hard one to quantify. We frequently photograph elements or textures from around us, which are then incorporated into a new image. When a person creates a texture (paving, brickwork etc etc) and we then photograph that texture, isn't that copying someone else's work? I find the line between "reproduction" and "re-imagining" to be somewhat vague and ill-defined.

On another tack, when you say that copyright must be owned by the member, how does that apply to a photo that I take of a work of art? My photo is surely my photo no matter what. So although I photograph a copyright subject do I not still own copyright of my photo ?

The whole realm of what and how we take photos is still a very grey area to me.

[ameerat42]

Re your 2nd paragraph, it is covered by Rick's 1st paragraph, which is from the link he put in, and which can be
found by scrolling to the section "Photography and the arts..."

That is, yes, you can do such as you say, and no - mainly because AP rules would be guided by that clause - it
would not be disqualified.

(At least that's how I see it I hope it increases the saturation of that area a tad)

[bobt]

Re your 2nd paragraph, it is covered by Rick's 1st paragraph, which is from the link he put in, and which can be
found by scrolling to the section "Photography and the arts..."

That is, yes, you can do such as you say, and no - mainly because AP rules would be guided by that clause - it
would not be disqualified.

(At least that's how I see it I hope it increases the saturation of that area a tad)

That link of Rick's is a very useful one and should be mandatory reading for all photographers. It is still a very complex area with various considerations needing to be factored it. I probably won't use that image of mine any more, although it's a good one. It falls in to the "re-imagining" category even though it is a direct copy of part of an artwork. I might even copy my own work using a real person instead of a statue. I do love statues and I'll probably continue trying to take photos of them in a way which presents that art form in a different way. It is using someone else's art, but it's also embellishing that art by applying my own artistic interpretation.

[ricktas]

Hi Guys, thanks for both of your comments - it's an interesting can of worms really. I've won a couple of comps with a close-up of a sculpture which was in the arts centre where photography was freely permitted. I'd post it here, but it would probably get deleted.

I'm interested in how you interpret our rule here which says that "Use of someone else's photograph, elements, composites or textures will result in disqualification". The "elements or textures" part of that is a hard one to quantify. We frequently photograph elements or textures from around us, which are then incorporated into a new image. When a person creates a texture (paving, brickwork etc etc) and we then photograph that texture, isn't that copying someone else's work? I find the line between "reproduction" and "re-imagining" to be somewhat vague and ill-defined.

On another tack, when you say that copyright must be owned by the member, how does that apply to a photo that I take of a work of art? My photo is surely my photo no matter what. So although I photograph a copyright subject do I not still own copyright of my photo ?

The whole realm of what and how we take photos is still a very grey area to me.

For part 1. You can buy textures etc off the net, to apply to photos. That rule is specifically about using a texture, element etc that is not your own work. So if you take a photo of some brickwork and use that as a texture overlay, then no problem, as far as our rules go. But if you grabbed a texture someone else had created, or photgraphed, or took umbrellas and teddy bears (for example) from a google search and added them, then that breaches the rules.

For part 2, if you photograph someone else's art work and enter that into a competition, depending on the location of the art work, and rules around its use, you may or may not be breaching copyright. From a personal viewpoint, I always vote down any entries in competitions that are photos of other people's art.. simply because it is a photo of someone elses creative work. I have no issue with people taking photos of others art, but personally, I think it is morally (my morals) wrong to enter that into a competition to try. If people want to take photos of them, perfectly fine, but not enter them into competitions.

[bobt]

if you grabbed a texture someone else had created, or photgraphed, or took umbrellas and teddy bears (for example) from a google search and added them, then that breaches the rules.

This raises another issue I have discussed with our club. They encourage use of the various PS brushes which allow you to add rain, leaves, butterflies etc etc to an image. Now my view is that these are no different to adding clipart from the web. They are not your work and shouldn't be included. Their argument is that because PS has so many manipulative tools they can be considered as just an extension of those tools. To my mind they are totally different because changing levels, contrast etc etc is different from actually adding in elements which weren't in your original image.

I always liked a rule I saw years ago which a club in NSW used for their comps. They said that "pigs might not fly, but if you take the image of the pig and the wings and the sky and put them all together, then that's fine". 8*)

[farmmax]

This reminds me of an image I took years ago, which did well in competitions. It was the closeup of the head of a statue. There was a spiders web over some of the face of the statue, and photo was as much about the web as the statue. What are people's feelings about that?

[Nick Cliff]

I recall reading, (and some one can update me on this), to be careful trying to sell photos of the Eiffel tower in Paris without paying the relevant French authorities a levy first, I suppose the Tower is in itself a work of art.
This begs the question are there other structures or buildings around the world were similar rules may apply?

cheers Nick

[ricktas]

I recall reading, (and some one can update me on this), to be careful trying to sell photos of the Eiffel tower in Paris without paying the relevant French authorities a levy first, I suppose the Tower is in itself a work of art.
This begs the question are there other structures or buildings around the world were similar rules may apply?

cheers Nick

It is not the tower as such, but the light display at night has copyright over it. So it is selling photos of the Eiffel Tower, lit up at night, that becomes an issue. The light display is considered an art work in its own right.

[bobt]

This reminds me of an image I took years ago, which did well in competitions. It was the closeup of the head of a statue. There was a spiders web over some of the face of the statue, and photo was as much about the web as the statue. What are people's feelings about that?

I think that's totally acceptable based on the principle that you have taken that art work and re-purposed it to produce another artwork. That (to me) is a fairly clear cut example. Your statue was presumably outside a museum rather than inside so would have been acceptable in any event. When people take photos of graffiti they are photographing other people's "art" but that sort of photo abounds in competitions. It's a very tricky area.

[ameerat42]

...When people take photos of graffiti they are...

...probably feeling desperate

[Liney]

This reminds me of an image I took years ago, which did well in competitions. It was the closeup of the head of a statue. There was a spiders web over some of the face of the statue, and photo was as much about the web as the statue. What are people's feelings about that?

From my point of view, that is perfectly acceptable because the image you took (which comprised the statue plus spiders web) is all your own work (unless we find that spiders have copyright laws of their own...)

If you take an image of a person, or crowd of people, standing in front of a famous art work such as the Mona Lisa, then I am of the opinion that the image is yours because the whole of the image is your work. The fact that it contains someone else's work is or should be irrelevant, it's like you can't take an image containing a specific make of car, or someone wearing a brand of clothes for fear of the manufacturer saying "that's mine, you can't use that".

On the other hand if you were to take a very carefully framed image of the painting itself then that would be a different matter.

[ricktas]

From my point of view, that is perfectly acceptable because the image you took (which comprised the statue plus spiders web) is all your own work (unless we find that spiders have copyright laws of their own...)

If you take an image of a person, or crowd of people, standing in front of a famous art work such as the Mona Lisa, then I am of the opinion that the image is yours because the whole of the image is your work. The fact that it contains someone else's work is or should be irrelevant, it's like you can't take an image containing a specific make of car, or someone wearing a brand of clothes for fear of the manufacturer saying "that's mine, you can't use that".

On the other hand if you were to take a very carefully framed image of the painting itself then that would be a different matter.

There is actually a section of copyright law related to 'incidental inclusion', to cover your exact example. Where something that is copyright is in the photo, as an incidental element, rather than being the actual subject. Copyright law allows for these incidental inclusions (in most circumstances).

We also have to remember copyright law is country based. So what laws apply here in Aus, under Australian Copyright Act, may vary considerably when in other countries. We cannot assume that because we can or cannot do something here in Australia, the same applies when in another country.