Most Bizzare Story Ever

It’s the stuff of mystery novels, with twists and turns and a very unexpected ending.  A sculptor in the US was recently awarded more than $3M in damages for copyright infringement over misuse of his work.

WAPO StoryThe work:  a replica of the Statue of Liberty, designed for a casino in Las Vegas.  The culprit:  the US Postal Service, who legitimately licensed a copy of an image taken of the replica by a photographer who offered it on Getty Images.

Say what?

Think about that again:  damages awarded for use of a properly licensed image of a piece of art.  The piece of art itself is a replica of an existing piece of art.

This is problematic on so many levels.

In both the US and Canada, photographs of architecture (if taken in public spaces) are not subject to copyright infringement claims, but photographs of art are.

New York New York CasinoA sculpture of Lady Liberty, on the property of a casino, was captured in a photograph.  Although not stated, I assume the photographer captured images of the building(s) as well.  While the photographer had every right to take both photos of the architecture and photos of the sculpture, he or she did not have authority to offer for sale the images of the sculpture.  He or she could use the photograph for any personal purpose, but not for a commercial purpose without a release.

NYC Official GuideBUT, the sculpture is a replica of an existing statue which is in the public domain.  The claimant had to prove that his work was materially different from the original.  He did.  In fact, the USPS admitted that they used the photograph of his work because the facial features were different – more pleasing to the eye.  Still – the claim of originality of the work is hard for me to swallow.  The intent of the commissioned work was to present the Statue of Liberty, regardless of how it might have been altered.

The photographer, who probably had no idea that he needed a release for some but not all of his work, offered the images for sale through Getty Images.  Getty accepted them.  The USPS properly licensed them.  Everybody did what they were supposed to.  So how did we get here?

I’m finding it very hard to say who is at fault here.  I’m thinking this case takes the notion of artistic rights a bit far, particularly when you consider that the size of the award should parallel the harm done to reputation or earning power.  I don’t see any harm.

Getty ImagesAnd if there is harm, why isn’t Getty at fault for accepting the image without proof of release?  Their website clearly states a release is required for recognizable people and for property.

I wonder if USPS will appeal?

As a general rule, I don’t photograph other people’s art.  Out of respect, and because I can’t offer the product as my creation, I just don’t.  But in this case, I’m sure I would have done exactly what the other photographer did, both because of the mental gymnastics needed to separate architecture from art and the notion that I was photographing a replica of something that millions had also photographed.  Suffice to say, lesson learned.

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