Near Las Vegas is an outdoor earth art piece called Seven Magic Mountains.enter image description here I have taken many photos there, the one above I took, well its a frame from a movie from my drone.

I am out a few weeks ago and I notice a small sign, that says photography is fine for personal use, commercial use requires written permission from...Well I will quote from the website

"Photography by visitors is permitted only for private noncommercial use.  Professional photography equipment (e.g., tripods, lighting umbrellas, etc.) may not be used or brought onto the premises.  Photographs taken on site may not be sold, licensed, distributed, or commercially exploited in any manner whatsoever."

So I am not a commercial photographer, how ever this policy bothered me on a number of levels. My first thought is that just because you say so, it does not mean it is so. Or in other words I think the policy is a bit of a bluff. I think I still own the photo below and any value I might gain from it would be the product of my work as the copyright owner.

So I am wondering, if someone offered me money for this picture I would then be in violation of their terms, are these terms actually binding on someone? And does someone down the line IE the artist, the company that organized/provided the funding, the US Gov(its on public land) have some claim on royalties if these pictures actually had some commercial value, like say ad revenue from a YouTube video?

I have now posted the picture on SE, a commercial venture, I also have a video on YouTube, another commercial entity, anybody have a legitimate monetary claim? Take that last question as rhetorical, I am really asking if "they" would ever have any kind of actionable copyright infringement claim on any work just because their art is in a picture?

Just to be clear:

  • According to the website, the art is "public art".
  • The location of the art is on public land.*
  • The website for the art is registered to a non-profit whom I speculate has licensing control of the art, don't know for sure, don't know if that matters.

    • they use the term "premises", there is no real premises defined. The public land around the art goes for many miles in every direction, although a wildlife fence runs along the highway a few hundred feet from it, no fence encircles it, if they have authority were would their domain end?

I would like to thank Dale M for his answer, I put some questions in the comments section of his answer, I was really talking to myself Dale, not really questions I expect you should or could answer.

I have for the last few hours been looking around the net, and I was able to find the particulars of the land use that the Seven Magic Mountains are granted. They have a right of way (ROW) from BLM. This is the same ROW that the BLM grants anybody that wants to put something on BLM land like power lines, roads etc. They are renters and have no particular rights beyond permission to put the sculpture on BLM land at this location for a couple of years (and watch out for desert turtles).

Their thing about commercial photography may be a bit overstated, especially the comment that

Professional photography equipment (e.g., tripods, lighting umbrellas, etc.) may not be used or brought onto the premises.

And

Photographs taken on site may not be sold, licensed, distributed, or commercially exploited in any manner whatsoever."

According to the BLM, on BLM land one can essentially photograph rather you are a professional or amateur and there is no particular language that even implies what gear is or isn't allowed. However a permit is required for certain filming and photography, such as filming movies, commercial products and photographing in non public areas or if sets and props are involved.

https://www.blm.gov/programs/lands-and-realty/leases-and-permits/filming-on-public-lands/film-permits

clarifying memo from 2013:

https://www.blm.gov/policy/im-2013-126

It seems the BLM is interested that you do not leave a mess, trespass etc., they don't seem to have any interest in fair use and copyright or have any vested interest in protecting users of all and any types from possible infringement, guess BLM just don't think it's BLM's business. A search on the keyword "Drones" netted no results that indicated BLM had any policy that limited use of drones beyond FAA regulation.

I left one key thing out, an over site. The signs posted on site said you needed permission from Seven Magic Mountains to film or photograph for commercial use.

So let me rephrase the question a bit:

Does having a public work of art on a ROW, on BLM public land, public land with anytime public access, give one extra weight with fair use rights or to deny or allow permission to BLM allowed public uses, because one has posted a fart in the wind contention on a sign? Or a shorter version, is that website language and sign a bluff?

They have no copyright claim to your pictures.

However, the owner/occupier of land can limit what is permitted on their land. If you or your drone were on/over their premises: any photos you take are subject to whatever restrictions they imposed. By entering their property in knowledge of the conditions you have agreed to a contract - break it and they can sue you.

For discussion of the misunderstood term "public space" see What is the definition of a "Public Space" for photography?

  • A couple things. FAA regulates all open space higher then 1 inch above the ground. Here at least there appears to be no restriction of drone flight. However anybody can restrict landing or takeoff from someplace they own/lease etc. and maybe they do. – Jon Aug 28 '17 at 12:37
  • I am wondering on public land, with miles of visibility, with something they describe as public art, with unlimited access (it never closes), they can claim no commercial photography of the art. I can stand on the road and shoot pics, can they restrict that? And where on public land can I shoot, were is the line? And what can they sue someone for? Can they sue the local news for shooting a story? Is the lease a matter of public record, and would those terms be where they get any claim over the property? – Jon Aug 28 '17 at 12:54
  • 1
    @Jon "FAA regulates all open space higher than 1 inch above the ground..." - is that hyperbole/sarcasm or are you serious? – BruceWayne Aug 28 '17 at 18:10
  • I don't remember were I read it, but that is the domain of the FAA. More precisely its flight above one inch. Cities, National parks and others really cant ban flight anywhere, but in the case of drones they can ban take offs and landing and zone for airports. But if they want no fly zones like over the grand canyon for example, they need to have the FAA take care of it. – Jon Aug 28 '17 at 18:21
  • @Dale M The owners of the copyright of the sculpture certainly have the exclusive right to limit the use of photos of their work, as "derivative works" or "copies" of their copyrighted works, under US laws. The fact that it happens to be displayed in public doesn't make it less copyrighted. Thus, the limited license stated at the site may be enforceable against commercial users. – Upnorth Sep 1 '17 at 6:05

Disclaimer: I am not a lawyer.

Fair use is a very tricky area of copyright law. But I think you'd lose on this.

The fact that the sculpture is on public land is irrelevant. Suppose you bought a book and carried it to a national park. While within the national park, you scanned it into your computer. Do you think that because you made the copy while on public land, that this would negate the author's copyright protection? Surely not. Ok, you didn't carry this sculpture to public land. But lots of national parks have bookstores. The fact that the books are sold on public land doesn't negate copyright.

In general, you cannot take a photograph of a sculpture and then sell the photo without permission from the sculptor. See, e.g. Ty vs Publications International, 333 F. Supp. 2d 705 (2004). A publisher printed a book containing photographs of Beanie Baby stuffed toys. Stuffed toys are considered "sculpture" under copyright law. The manufacturers sued for copyright infringement and won. The court ruled that the pictures were just a different way of presenting the same thing.

Or Gaylord v United States, 595 F.3d 1364 (2010). An artist created a sculpture for the Korean War Veterans Memorial in Washington DC depicting 19 soldiers. The Postal Service made a stamp with a picture showing (most of) the sculpture. The court ruled that the stamp was not fair use and the Postal Service had violated the sculptor's copyright. Oh, and just occurred to me, that sculpture is on public land.

On the second part: I doubt that using "professional" photography equipment versus a simple amateur camera would have any effect on a fair use court case. None of the criteria for establishing fair use have anything to do with the tools the defendant used to create the copy. I'm not a copyright lawyer, but I would be very surprised if a court said that a photograph taken with a cell phone is fair use but the exact same photograph taken with an expensive professional camera is not.

That said, a copyright owner can set just about any conditions for use that they want. They can't take away your fair use rights, but if you do not qualify for fair use, the copyright owner decides what conditions you must meet. If he wants to say that only people wearing orange shirts are allowed to take pictures of his work, I'm not aware of any law saying he can't set that condition. (Of course if he said that only white people are allowed, he'd run into civil rights issues, but there's nothing like that here.)

Your photos of their copyrighted sculpture would constitute "derivative works" or "copies" of their sculpture in a different form, thus infringing the copyright, absent a statutory exemption or a license. They have granted a license for certain limited uses. You would have the burden of proving a statutory exemption, such as "fair use", or compliance with their license, were you to be charged with infringement. Commercial sales of photos of someone else's art, displayed in public, are not "fair use".

Similar issues are raised in https://photo.stackexchange.com/questions/4140/what-are-the-copyright-issues-when-selling-photos-of-public-art

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