publishing images of public art in US

Question

I am a small press book publisher. I'm planning an anthology with 50 photographs of Public Art pieces, mostly sculptures found in Washington state and in Oregon; on the facing pages will be poems about those works of art. Do I need to elicit permissions from the 50 entities on whose (public) property the art is located, or can I simply provide a page to acknowledge ownership, the artists who created the public artworks, and their locations?

Answer 1

This turns out to be a somewhat complicated issue, and the rules are different for US and UK law, and may be different again under the laws of other countries.

US Law

If the statues are incorporated into buildings 17 USC 120 (a) seems to grant permission. Specifically, it provides that:

Pictorial Representations Permitted.—The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

This does not, however, apply to free-standing statues, and the description in the question suggests that most of the images involved would be of free-standing works.

The Wikimedia Commons page Public art and copyrights in the US is intended for guidance to Wikipedia editors and Commons contributors on what uses of photos are permissible under US law, except that as per Commons policy, it ignores any question of fair use, because commons does not host work available only under fair use.

As that page points out, the rules under US law are different depending on the date of creation and publication. See also the famous Cornell Public Domain Chart

Copyright Notice

Many statures were erected under the old 1909 Copyright act. This will apply to all statutes created prior to 1978 (the effective date of the 1976 Act). Under the 1909 act, a copyright notice was absolutely required. Publication without a notice resulted in loss of copyright. Under the 1976 act as originally passed, a notice was still required, but the omission could be cured by registration within 5 years. If that was not done, the work entered the public domain. After amendments that took effect in 1989, notice became optional and was never cause for loss of copyright.

Publication

Under the 1909 Copyright act, "publication" was defined in case law, not in the statute. This definition was summarized by Nimmer on Copyright in section 4.039(A) where Nimmer states that “publication occurred when … the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public...”

Publication was important because the notice requirement applied only to published works, and statutory copyright began with publication. Publication is thus still important to determine the copyright status under US law of works created before 1978, and in some cases before 1989.

In King v. Mister Maestro, Inc., 224 F. Supp. 101 (S.D.N.Y. 1963) Nimmer was quoted on this issue at page 107 as stating:

This analysis suggests that a sine qua non of publication should be the acquisition by members of the public of a possessory interest in tangible copies of the work in question.

In that case the court held that advance distribution to the press of the text of Dr. Martin Luther King Jr's "I have a Dream" speech was a limited distribution, and so the absence of a copyright notice did not cause the loss of copyright.

In Letter Edged in Black Press, Inc. v. Public Bldg. Com'n of Chicago, 320 F. Supp. 1303 (N.D. Ill. 1970) The district court held that the statue known as "The Chicago Picasso" had passed into the public domain because models of the stature were publicly exhibited without a copyright notice, and photos of the statue were distributed to the press and widely reproduced that did not show or include any copyright notice. The court wrote (at page 1308, footnotes omitted):

To determine how a work comes to be in the public domain it is necessary to explore the basis of the copyright protection. The common law copyright arises upon the creation of any work of art, be it a first sketch or the finished product. This common law right protects against unauthorized copying, publishing, vending, performing, and recording. The common law copyright is terminated by publication of the work by the proprietor of the copyright. Upon termination of the common law copyright, the work falls into the public domain if statutory protection is not obtained by the giving of the requisite notice.

...

[page 1309] Once a work is published, however, the Constitution dictates that the time for which the statutory copyright protection is accorded starts to run. An author is not allowed to publish a work and then after a period of time has elapsed choose to invoke statutory copyright protection. If the statutory protection is not acquired at the time of publication by appropriate notice, the work is lost to the public domain. Any other rule would permit avoidance of the "limited times" provision of the Constitution.

...

[page 1310] The maquette [reduced-scale model], however, was an original, tangible work of art which would have qualified for statutory copyright protection under 17 U.S.C. § 5(g).[19] The court finds that when the maquette was published without statutory notice Picasso's work was forever lost to the public domain. When the monumental sculpture was finally completed it could not be copyrighted for it was a mere copy, albeit on a grand scale, of the maquette, a work already in the public domain.

...

[page 1311] ... every citizen was free to copy the maquette for his own pleasure and camera permits were available to members of the public. At its first public display the press was freely allowed to photograph the maquette and publish these photographs in major newspapers and magazines. Further, officials at this first public showing of the maquette made uncopyrighted pictures of the maquette available upon request. Were this activity classified as limited publication, there would no longer be any meaningful distinction between limited and general publication. The activity in question does not comport with any definition of limited publication. Rather, the display of the maquette constituted general publication.

Thus, under the 1909 Copyright Act, public display of a statute, under condition's where any person could view, sketch, or photograph the work constituted publication and if done without a copyright notice affixed at the time of publication so as to be visible to the public, meant that the statue entered the public domain at once and forever.

Copyright renewal

Under the 1909 Copyright act, copyrights lasted for an initial term of 28 years, and unless renewed, copyright expired. Later law made renewal automatic for works still in their first term, thus any work published (see above on publication) in 1964 or later did not require a renewal registration. But any works published in 1963 or earlier required a renewal registration to be filed with the US Copyright Office. This could be done in the 27th, 28th, or 29th year after publication, but not earlier or later. Failure to properly renew caused the copyright to expire.

The records of renewal registration can be found online at https://www.gutenberg.org/cache/epub/11800/pg11800.html How to search those records is discussed in https://law.stackexchange.com/a/78681/17500

Statues Erected before 1927

Any statues erected in a public place in the US, and therefore published before 1927 are now in the public domain under US law. Photos of such works can be freely reproduced with no legal restriction, no need for any permission, or any royalty or fee payment. (Indeed even attribution is not legally required, although I and many others would think it morally essential.)

Statues Erected 1927-1963

Any statues erected in a public place in the US, and therefore published, during the period 1927-1963 are now in the public domain IF:

1. No visible copyright notice was affixed to the statue;
2. Copies of the statue, or photographs of the statue, were distributed by permission of the copyright owner without copyright notices; or
3. Timely renewal registration was not made.

Statues Erected 1964-1977

The same conditions apply as in the 1927-1963 period, except that renewal of copyright was automatic, so renewal registrations were not required.

Statues Erected 1978-1 March 1989

During this period copyright notice was still required, but lack of notice could be cured by registration within five years. Also during this period the definition of "publication" had changed. 17 USC 101 now defines publication as:

... the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. [Emphasis added]

So to establish publication one must show authorized distribution or offering of copies to the public, not merely display in a public place.

Statutes published during this period are now in the public domain IF:

1. There was no copyright notice on the statue itself;
2. Copies were distributed or offered to the general public with no copyright notice; and
3. The statue was not registered with the Copyright Office within five years of publication.

To document public domain status for works in this period would require research in to the distribution and format of copies, and a check of the copyright office records, not merely an inspection of the statue.

Statues Erected After 1 March 1989

All works created or published after 1 March 1989 are still under copyright unless some other exception applies, such as the statue being a work of the US Federal Government, or being a copy of an older work that is in the public domain. Neither copyright notice nor registration was or is required.

Permission or Fair Use

Any statues which do not fall into the public domain under one of the above categories can be used only with permission, or under a claim of fair use.

Permission is simple, but may be hard to obtain. Indeed it may be hard even to determine who the current copyright owner of a statue is. But if one can determine the owner, one may simply ask. The owner is free to say yes or no, and may grant permission on whatever terms the owner chooses, including a specified attribution, or a fee or royalty.

That brings us to the consideration of fair use, and whether a photograph of a statue can be fair use under the conditions of the question.

In the case of Robert S. Davidson v. United States, United States Court of Federal Claims, No. 13-942C (2018) cited in the answer by user6726 and in the somewhat similar earlier case of Gaylord v. United States, 595 F.3d 1364, 1374 (Fed. Cir. 2010) courts declined to find that use of a photo image on a US stamp by the US postal service was a fair use.

But in Davidson the court stressed that the use was not transformative, that billions of copies of the image were made, that the Postal Service made tens of millions of dollars of "pure profit" on the images, and that no text or other addition to the image of the statue was made. It did a full four-factor analysis and held that, in this particular case, the use was not a fair use. Several of the circumstances whch led to the Davidson decision are not comparable to the situation suggested in he question here.

There is no generally applicable definition of fair use, and therefore each case must be decided on its own facts and unique circumstances. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994). [quoted in Davidson, supra]

Let us consider the four statutory factors from 17 USC 107 in the circumstances of the question.

The purpose and Character of the Use

The purpose and character of the use is often the dispositive factor in the fair use analysis. This factor embraces both how the work is used and to what end, i.e., whether the work is somehow transformed by the new use and what is the user of the work doing with it. [Davidson, supra]

By pairing the image of a statue with a poem about that work of art, or reflecting on its theme, the described work is arguably transformative. Such a book would be commercial in that it would be sold, but presumably would not be a major money-maker (unlike the stamps in Davidson). The question states that proper attribution and credit would be provided. By selection of angle and lighting, and original element is added to the photo.

Overall, this first factor seem to me to lean strongly toward a finding of fair use.

The Nature of the Copyrighted Work

The statues are presumably creative works, and in most cases are not themselves derivative. Thus the second factor leans away from a finding of fair use.

The Amount and Substantiality of the Portion used

Presumably the photos would show the entire statue, or at least most of one side. This leans somewhat against fir use, but has not precluded a finding of fair use in many cases.

The Effect of the use Upon the Potential Market for or Value of the Copyrighted Work

This factor is often of key importance, along with the transformation aspect of the first factor. It is also particularly hard to asses without knowing the specifics. In particular, how each individual statue had previously been marketed by the copyright holder, and any evidence of plans to market photos of the statue.

In the absence of significant marketing or likelihood of future marketing of images of a given statue by the copyright holder, and in the presence of other commercial images of the statue without a royalty being charged, this factor would lean toward fair use. Evidence of current marketing that might plausibly be interfered with by such a book would cause this to lean away from fair use. It seems unlikely that the book would function as a substitute for the statue, which favors a finding of fair use.

Overall Fair Use Analysis

It is not really possible to determine in advance how a court would rule on the fair use issue. Note also that there could be a separate suit, with a separate analysis, for each of the statues that is under copyright. But there is a reasonable chance of a finding of fair use, depending on the detailed facts. It is by no means implausible.

Conclusion on US law

By selecting statues not protected by copyright, due to the dates when they were erected, the absence of a copyright notice, or the absence of a required renewal of copyright, such a book might well be created with no copyright liability. Additional works that are in copyright, but where a fair use finding seems likely, could be added with only limited risk. Addition of commentary on individual statues would bolster the likelihood of a fair use finding.

Canadian Law

According to "Copyright and Taking Pictures of Sculptures" from Cjam (Clinique Juridique des Artistes de Montréal),

If the sculpture is “permanently situated in a public place or building”, it is not an infringement of copyright to reproduce it in photographic form. While this might not apply to a temporary exhibition in a coffee shop, if you then sell the sculpture to the city of Montreal and they place it permanently in Parc Lafontaine, you no longer have the exclusive right of reproduction.

This cites the Copyright act RSC 1985, c C-42, s32.2(1)(b) which provides that:

32.2 (1) It is not an infringement of copyright ...

(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

(b) (i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or

(b) (ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

Other Countries

In those countries wil provide for the Freedom of panorama such a book would be likely to be legal.

According to the Wikipedia article linked above:

Freedom of panorama (FOP) is a provision in the copyright laws of various jurisdictions that permits taking photographs and video footage and creating other images (such as paintings) of buildings and sometimes sculptures and other art works which are permanently located in a public place, without infringing on any copyright that may otherwise subsist in such works, and the publishing of such images.

The article lists many countries where FOP applies, and others where it applies in a limited way.

In a country where FOP applies fully, a book such as described in the question would not be restricted by copyright on the various statues.

Answer 2

You do not need to get permission from the property owners, except insofar as you have to enter the property to take a photo. You do need the permission of the copyright owner. That could be the artist, or it could be a person who commissioned the work. See Davidson v. US for an expensive lesson (paid by the USPS) on not getting permission from the copyright holder. The copyright office has a summary of legal points regarding copyright on visual works (yes, sculptures are copyrightable). There is an exemption for "US government works" under 17 USC 105, which is "a work prepared by an officer or employee of the United States Government as part of that person’s official duties" – such a work is not protected. Otherwise, it is protected.