Do My Photos of Another Person's Artwork Infringe Copyright?

Have you ever seen amazing street art or a gallery and you couldn't help but take that picture and post it on Instagram? I think we all have, but have you ever asked yourself this question: Can my picture of someone else's artwork potentially infringe on the artist’s copyright? Sort of like a copyright within a copyright. This is an important question you need answered so let's get into it!

Before we delve into the specifics of photographing artwork, let's take a moment to brush up on copyright basics. Copyright is a legal protection that grants exclusive rights to the creators of original works, including paintings, sculptures, photographs, and other forms of artistic expression. These rights give the creators control over the use, distribution, and reproduction of their work.

Now, let's address the million-dollar question: Does photographing someone else's artwork infringe on copyright? The answer, as always, is not a straightforward "yes" or "no." It depends on various factors, including the circumstances and purpose of your photography.

First off, to even infringe on a copyright, copyright laws must protect the artwork itself. Most of the time artists have a current valid copyright over their artwork and there is a potential to infringe over the work. However, some older artworks might have entered the public domain, meaning their copyright has expired. For example, the Mona Lisa no longer has copyright protection over it despite being one of the most famous paintings in the world. So you can freely take that image and print it on tee-shirts, mugs, etc. and have no worries about getting a cease and desist letter. In the United States, the general rule is that if the author is still alive then the copyright is still valid. If the author is deceased and it has been over 70 years since their death then chances are the copyright has expired and it is free to use. 

To infringe on artwork it also cannot fall under the “fair use exceptions”. For instance, if you are using artwork for educational purposes that is likely considered fair use. Another example is if you are an art critic you can use the art for criticism purposes. Another way you can use aspects of artwork and not infringe upon it is to transform the work and make it your own. If your photograph of the artwork significantly alters the original work, adds new meaning or expression, and serves a different purpose, it may be considered transformative. However you need to make sure you are changing the work enough to truly call it your own, which sometimes is hard to do. Transformative use can provide a strong defense against copyright infringement claims, but don’t rely on this defense if you aren’t legally prepared to put up your case.

Additionally, the purpose and context in which you capture and use the photographs also play a role. If your photographs of the artwork are for personal use, such as sharing on social media or keeping them as memories, the risk of copyright infringement is generally low. However, if you plan to use the photographs commercially or for promotional purposes, it's crucial to obtain proper permissions or licenses to avoid potential legal issues.

To avoid any potential legal disputes or infringement claims, it's always a good practice to take the following steps when photographing someone else's artwork:

1. Seek permission: If you plan to use your photographs that contain the copyrighted works for commercial purposes, seek permission from the artist or copyright holder beforehand. Obtaining written consent will help protect you from any future legal complications. This is the most important step when photographing artwork.
   
   
2. Attribute the artist: Give proper credit to the artist whenever you share or display the photographs. This not only shows respect for their work but also helps clarify that you are not claiming ownership over the original artwork.
   
   
3. Educate yourself: Familiarize yourself with copyright laws in your jurisdiction, as they may vary from country to country. Stay up-to-date on any recent developments or changes that may impact the use of copyrighted materials.
   
   
   

While photographing someone else's artwork can potentially raise copyright concerns, understanding the nuances of copyright law and adopting best practices can help you navigate this gray area with confidence. Remember to always respect artists' rights and seek permission when necessary, especially for commercial use. By doing so, you can capture and share the beauty of art while staying within legal boundaries.

If you are an artist wanting to license your work and need a contract look no further. Buy a non-exclusive licensing agreement HERE. 

THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. EVERY SITUATION IS DIFFERENT & IS FACT-SPECIFIC. A proper legal analysis is necessary based on your location and contract. Consult an attorney in your home state for advice regarding your contract or specific legal situation.

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