Am I being sued?!!!????

[Garbz]

What I meant was the whole point of being unable to copyright an idea is the reason why patents exist. In pretty much most of the world taking a photograph of a copyright work is not a copyright infringement.

 

[Tight Knot]

Hi all,
Thank G-D, the issue has been clarified, and cleared up. I received a very nice email from the sculptor, and am pasting her email here, including my reply.

Dear Mr. Len,

I am the artist who created the sculpture "She" at Park Hagalil. The park is NOT public. It is owned and maintained by the city of Karmiel and is totally fenced, gated, closed at night, guarded and admission is charged. By law, as the artist, I, and the city of Karmiel hold the copyright on my sculpture there. Near the base of the sculpture is a marker with my name and title of the work. It is against copyright laws to post a photo of a sculpture (in a private park) on a website used for commercial purposes without getting permission from the artist or the city of Karmiel, and without listing artist's name and title of the work.

The curator of the exhibition did e-mail you and I'm glad that you took the photo off your website. We are not interested in suing and it is not a scam. I will e-mail this information to the Photo Forum website in the next few days and hope this clarifies the issue.

Sincerely,

Merle Temkin (P.S. The photo was actually very nice).



This is my reply:


Hi Mrs/Miss Temkin,

First of all, I would like to thank you for contacting me directly, I really appreciate it.
I would like to start by apologizing for A: Using the photo of your sculpture on my website without permission, I had no idea that I wasn’t allowed, and B: For misnaming the sculpture, and not attributing it to you.
Unfortunately, when I took the photo, I did not see any markings or signs on or near the sculpture listing the title of the sculpture or the name of the artist.
My intent was not to rename the sculpture, but not knowing what the title was, I called the photo “reflective man” as I saw a human form that was reflective, as a way for me to locate the photo in the future. Had I known what the real title was, I would not have put it on my website without having given it the correct title and attributed it to you. The truth is, I still would not have known that I was not allowed to display it for commercial purposes on my site, and am glad that I have now learned this valuable lesson. I have only been doing photography for 2 years now (right after we made Aliyah), and obviously have a lot to learn about the legalities involved.
I also did not know that the park is a private park. I just thought that this is the norm in Israel, that you have to pay for these parks, but that they are State owned.
I was at the park with my family on a Nefesh B’Nefesh picnic, and was captivated by your sculpture. It was getting dark, and I was not able to get a nice sharp photo of it, but still liked it so much (the sculpture, not the photo) that I put it on my website.
I have since seen your other works on your website, and have enjoyed them tremendously.

Again, I apologize for the above, and thank you for contacting me. If you would like I can email the photo to you in it’s full resolution. Needless to say, I will no longer display it on my website or on any other public platform. I would like to go back and take a better photo of the sculpture at some time in the future, and if I do, I will contact you and ask permission to display it (not for sale, but just to show the works of others that inspire me).

Thanks again,
Have a wonderful week,

Boruch Len.

PS. I will also post this on the photo forum, to clarify the issue.

 

[The_Traveler]

Adult behavior on both sides and a seeming good result.

 

[skieur]

It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes. There have been legal cases in the US and Canada that back up that position.

skieur

 

[jaicatalano]

I wouldn't worry. I have sued people in the past and won. Nothing comes of it unless it's headline news.

 

[pixmedic]

Adult behavior on both sides and a seeming good result.

yup, very nice...now if only that happened more often here on the forum.

 

[The_Traveler]

It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes. There have been legal cases in the US and Canada that back up that position.

skieur

this park is not in the US not Canada and the law is evidently not the same.

 

[GooniesNeverSayDie11]

This whole thing sounds messy.
If I take a photo of the Empire State building and sell it, which I'm sure you can find tons of that on stock photography sites, can I get sued by the owner, or the firm that designed the building?

Buildings built before 1990 are not copyrightable but ones built after 1990 are. If it is built after 1990, you need to check if it has been copyrighted and get permission. You will also need permission if there are art works on the building or in your field of view because the art works are likely copyrighted. Copyright expires, I believe, 70 yrs after the passing of the originator.

Copyright of architecture prevents copying architecturally, it does not prevent people from taking and selling photos of a building. Buildings can be trademarked. However, this does not always hold up in court.
There was a famous case of a man selling posters of the Rock and Roll Hall of Fame building, and the court ruled in his favor. (See : Rock & Roll Hall of Fame & Museum v. Gentile Prods., 134 F.3d 749 (6th Cir. Ohio 1998) )

 

[skieur]

It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes. There have been legal cases in the US and Canada that back up that position.

skieur

this park is not in the US not Canada and the law is evidently not the same.

Well to quote Isreali law: The reproduction of this architectural work, work of sculpture or work of applied art, is covered under the Israeli copyright statute (2007), which states that "Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of an architectural work, a work of sculpture or work of applied art, are permitted where the aforesaid work is permanently situated in a public place." (paragraph 23)

skieur

 

[The_Traveler]

Does that same section cover displaying the reproduction for sale?

 

[The_Traveler]

In reading the unofficial translation of the Israeli law, it seems that a display of the picture might fall under Fair Use but actually displaying for sale isn't allowed statutorily and any case is deferable to the courts.

 

[markj]

How the hell did the curator get your email address?

 

[exemplaria]

It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes. There have been legal cases in the US and Canada that back up that position.

skieur

The fact that people are allowed to pay to come in during certain hours does not make it a public place. By that definition, every privately owned museum, stadium, concert hall or attraction is a "public place", and we all know that's not true.

OTOH, I can find hundreds of photos for sale of "Cloud Gate" (the Chicago Bean), most of which do not mention the artist's name (Anish Kapoor, if you're interested). I can also find plenty for Spoonbridge and Cherry in Minneapolis, or The Sphere in NYC. So it appears if it's in a truly public place there's no issue.

 

[skieur]

It may be a privately owned park, but it is a "park accessible to by the general public" which is the LEGAL definition of a PUBLIC PLACE in the U.S. If the sculpture is permanently in that location, then anyone is allowed to take a photo of the sculpture and use it in any way other than for advertising purposes. There have been legal cases in the US and Canada that back up that position.

skieur

The fact that people are allowed to pay to come in during certain hours does not make it a public place. By that definition, every privately owned museum, stadium, concert hall or attraction is a "public place", and we all know that's not true.

OTOH, I can find hundreds of photos for sale of "Cloud Gate" (the Chicago Bean), most of which do not mention the artist's name (Anish Kapoor, if you're interested). I can also find plenty for Spoonbridge and Cherry in Minneapolis, or The Sphere in NYC. So it appears if it's in a truly public place there's no issue.

Yes, in fact every privately owned museum, stadium, concert hall or attraction is legally a "public place" since the public has access to it, if they pay to enter. You should spend the time I do, with the law.

I should point out that the definition of a "public place" was made in the US Supreme Court in the Sony case several years ago, and it became part of intellectual rights and copyright treaties with other countries.

skieur

 

[bunny99123]

It is against the law to take photo's of art work unless it is posted other wise, although I myself have done so. Art work of any kind is resprentation of someone's product. Just as the photos you take. Keep that in mind when photographing. Also, if this park is serious you would have received a certified letter from an Attorney...not a threat to be contacted by one. I agree, I would contact the park to see if it is a scam. If not, just remove it from your website, not worth the hassle.