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May 3, 2023 | Copyright

Does Photographing Someone Else’s Artwork Constitute Copyright Infringement?

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Author(s)
Marc D. Ostrow

Senior Counsel

Jari Wilson

Associate Attorney

Generally, under U.S. copyright law, the person who created a work is the copyright owner.  As a result, a photographer who takes a picture would own the rights to the image.  But what if the photograph is taken of something where the copyright is owned by another party, such as a work of fine art?  In that scenario, the photographer may be liable for copyright infringement.  Before you try to publish or profit from a photograph of someone else’s artwork, you should know how copyright law may apply and what rights you may have.

What is a Copyright?

A copyright is a form of intellectual property.  Virtually all types of creative work can be copyrighted, including literary, musical, pictorial, sculptural, and other works.  Importantly, copyright law protects original works of authorship as soon as they are fixed in a tangible medium (i.e., written down or recorded).

What Rights Do Copyright Owners Have?

The owner of the copyright has the sole right to use, reproduce, distribute, display, prepare derivative works, sell, and license the work.  While registering a copyright is not required to have the rights mentioned, it does offer numerous benefits, including the ability to sue an infringer in court and obtain an injunction and damages.

When Does Photographing Someone Else’s Artwork Constitute Copyright Infringement?

Copyright owners have broad rights to control when and under what conditions their work can be used by others.  That includes prohibiting photographers from publishing photos of the copyright owner’s work.  A photographer who takes pictures of copyrighted artwork without permission may have committed copyright infringement and may be liable to the owner of the artwork if the law’s requirements are met.

To establish copyright infringement, the burden of proof is on the plaintiff to show that (1) they are the owner of a valid copyright in the work, or they have the legal authority to bring a lawsuit, and (2) the defendant actually copied the copyrighted work.  However, even where the claim is established, the defendant may still have a defense to the infringement.

How Can A Photographer Defend Against An Infringement Action?

There are several defenses available in copyright infringement actions.  The first issue that often arises is whether the photographed artwork is in the public domain.  If it is, then permission to photograph it is no longer required because the work is no longer protected under U.S. copyright law.  A copyright does not last forever and a work will enter the public domain when the copyright either expires under the law, the owner failed to renew it under prior copyright law, the owner dedicates it to the public domain, or the work is not copyrightable.

If the artwork is not in the public domain, fair use is a common defense used in the case of photographs of copyrighted works.  Courts weigh the following four factors in determining whether a use constitutes fair use:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

What Remedies Exist For Copyright Infringement?

As noted above, one of the advantages of copyright registration is that it gives the copyright owner the right to sue in court for infringement.  Copyright law allows the owner to recover damages as well as obtain an injunction against an infringer ordering him or her to cease infringing as well as to seize infringing goods.

Owners can choose between recovering their actual damages, including any profits the infringer made, or statutory damages.  Statutory damages are between $750 to $30,000 per infringed upon work.  However, if the infringement was committed willfully, the owner can be awarded up to $150,000 per work.  Willful infringement may be shown with evidence that the infringer removed a copyright notice when publishing the copyrighted work or failed to remove or retract the content after being notified that it was infringing.

How Can Photographers Avoid Liability For Infringement?

The best practice is to conduct due diligence regarding the artwork.  The simplest solution is to limit commercial photography to artwork in the public domain to avoid having to find the copyright owner and obtain permission.

Where the artwork is copyrighted, photographers should contact the copyright owner for permission to use the image and give credit to the owner when publishing the photograph.  In some cases, photographers may be required to purchase a license in order to use the photograph.

Conclusion

When in doubt, it is important to consult an attorney to avoid liability for infringement.  If legal action is threatened or pursued, an experienced intellectual property lawyer can determine whether any defenses apply or otherwise attempt to successfully resolve the matter.

Photo by Erik Mclean on Unsplash
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