Archived posting to the Leica Users Group, 2001/06/15

[Author Prev] [Author Next] [Thread Prev] [Thread Next] [Author Index] [Topic Index] [Home] [Search]

Subject: Re: [Leica] Re: Copyright questions
From: Rob McElroy <>
Date: Fri, 15 Jun 2001 10:04:53 -0400
References: <>

For All,

As the ever-confusing issue of copyright and its various infringement issues comes to the forefront of discussion again, I am once again reminded of
the vast amount of misinformation and misinterpretation of these laws that exists in today's society, even within the legal and creative professions
(I'm only referring to the US here, I have no knowledge of the copyright laws in other countries.).  Until specific (often times incorrect)
interpretations of the copyright law are challenged in court (re. Napster, photos of architects' buildings, the photo of the dogs that was turned into
a sculpture, etc.), we the photographers and creators of images are still unsure of whether or not we can legally photograph, make copies of, exhibit,
sell, distribute, make money from, etc., the objects and/or people that we decide to focus our lenses on.

The U.S. Copyright Law specifically states that in order to qualify for copyright protection, a work must be an "original work of authorship that is
fixed in a tangible form of expression."  Also, the Copyright Law specifically protects the creator of a copyrightable work from having other people
"prepare derivative works" (without authorization) based upon his/her copyrighted work.  If the sculptor, who used a copyrighted photograph as the
basis for his sculpture, was proven in court to have infringed on the photographer's copyright, does it not seem that the reverse could be true in the
case of a photographer who photographs a copyrighted creative work of art and then sells the images of that work of art?  Are the photographs not a
"derivative work?"   I am not venturing an opinion here, only posing the question.

Then comes the issue of the famous Lone Cypress tree that sits out on the rocks off the coast of Northern California on the beautiful 17-Mile Drive in
the Carmel / Monterey area. It is a very popular tourist destination and the tree has been photographed by virtually every visitor with a camera that
has seen it in the past 100 years.  You must pay a fee to drive down this beautiful stretch of coastline dotted with expensive homes, picturesque
views, the Pebble Beach golf course, etc.  The tree is now protected from being photographed by professional photographers who plan to sell or
distribute the image of Mother Nature's beautiful lone cypress.  I doubt whether the owner of the land/rocks the tree sits on was able to secure a
legally enforceable copyright (it is after all, not a creative work created by man, although maybe Mother Nature could claim a copyright on it.)  I do
believe the symbol of the tree is now trademarked though, and there was some heated discussion about this a few years ago when photographers using a
tripod were prohibited from photographing it because of "trademark and/or copyright laws."  I believe the restriction is still being enforced but I
don't think it has ever been challenged in court.

It raises the hair on my back to even think about being prohibited from photographing a tree because I might look like a professional photographer
with my 4x5 or 8x10 camera on a tripod, but yet any tourist with a point and shoot, or some sneaky guy with his 6x17 Linhof, Xpan, or M6, can shoot
the tree hand held without a problem.  I wish I had the money to take them to court.  In my eyes this is called prior restraint and should be
illegal.  Just like documenting (with your camera) the experience of a live musical event.  The making of photographs does not violate any copyright
or laws.  Tape recorders, on the other hand would violate the music's copyright and that is understood.  It should be my right as a citizen to
photograph ANY public situation I encounter no matter what!  In fact, I know of no federal or state statute that prohibits the "taking" of
photographs, with the exception of governmental/military restrictions.  It is only the future distribution, sale, or display of those images that
would constitute any potential copyright infringement or potential legal challenge.

What do you think?  Should anyone be prohibited from photographing a tree?  Should only professional photographers be prohibited from photographing a
tree?  Should professional photographers be prohibited from selling images of the Lone Cypress tree?  If photographers can now legally photograph and
sell images of an architect's creation, shouldn't that apply to trees also?  Just some food for thought.

Rob McElroy
Buffalo, NY

Austin Franklin wrote:

> > Kip:
> >
> > >In the original question, it was noted that the sculpture was owned by a
> > >private party who gave permission for the photograph.  Could that owner
> > >make his own photos of the sculpture and sell them?  If not, why not?
> > >Or could he use the sculpture in a business that he owns?
> >
> > Replace "sculpture" with "photograph."
> >
> > If you buy a print, are you allowed to make copies of that print and sell
> > them?  (No.)
> >
> > Are you allowed to hang the print on your wall?  (Yes.)
> >
> >
> > Eric
> That is not the same.  The item you are purchasing IS a photograph, but when
> you buy a sculpture, you are not buying a photograph, and you are not making
> more sculptures by taking a picture of it.
> Replace photograph (sculpture) with automobile.  If you buy a car, can you
> take a picture of it?  Of course.  Can you use pictures of YOUR car in a
> magazine, of course.  Can you use pictures of YOUR car in an advertisement,
> of course.  Why do you think a sculpture is any more a work of art than a
> car is?
> If photographers had to get permission to use EVERYTHING used as props,
> there would be no photographs.  Pens, watches, benches, cars, buildings,
> cameras...trinkets on a desk....

Replies: Reply from "Mxsmanic" <> (Re: [Leica] Re: Copyright questions)
In reply to: Message from "Austin Franklin" <> (RE: [Leica] Re: Copyright questions)