As photographers, videographers and YouTubers walk around town, snapping pictures and videos of surrounding parks, marketplaces, streets and gatherings … little thought is given to sculptures, paintings, displays and other works of art placed in plain sight. How many of us think twice about the copyright limitations of art placed in public? How many wonder if they are permitted to include images of the art in their films or videos? After all, art whether placed in a public park or in a gallery, is entitled to the same measure of protection by the law. Why should the law treat art created by artists any different just because of the place in which it is installed?
Copyright law protects original, creative works of authorship, including works of art such as paintings and sculptures. The law provides such artists with exclusive rights to:
- Reproduce the art;
- Distribute copies of the art;
- Perform the art publicly;
- Display the art publicly; and
- Prepare derivative works based upon the art.
And the fact that these pieces of art are displayed in public, the fact that they might have been commissioned by a municipality, the fact that we’ve gotten used to seeing them everywhere … does not change the fact that copyright law still protects the artists rights.
The creative art when done in public does not place it within the public domain or give other people any license to use it. We all get the right to enjoy the art, but we don’t get any special rights to use it, incorporate it or include it in our own works of art, such as videos.
When we film a video or record a vlog which incorporates images of a work of art installed publicly, we are creating a derivative work. A derivative work is an expressive creation, such as a video, that includes copyright-protected elements of an original, previously created work (such as a publicly installed piece of art).
And if we don’t get permission from the original artist to include images of that statue in our video, we might be infringing that artist’s copyright. That’s right, when we walk around filming videos for our YouTube channel we might be infringing on the copyright otherwise provided exclusively to the artist of a publicly displayed work.
So how do we deal with a desire to include a publicly displayed piece of art in our videos without first seeking the artists approval? We must figure out under what circumstances is a person otherwise liable for infringement of copyright in a derivative work excused from liability by an affirmative defense? There in fact exists a legal carve-out to copyright infringement that applies to derivative works. Fair Use.
Fair use protects the creative choices of video makers who seek to incorporate images from real life into their creative work.
In determining whether the use made of the publicly installed art in any particular video, picture or film is a fair use, the court will balance how transformative your video is relative to that fact that it might be for commercial reasons. Was your usage of the images of the copyrighted art transformative or creative of new and original work or was it simply copying.
For example, since the artist does not normally have an interest in including his sculpture in a daily vlog, your inclusion of the images as part of your vlog has minimal impact on the artist’s rights. If, however, the video is almost entirely of the sculpture, it would represent a substantial impact on artist’s right to creative a derivate work of his work.
That’s why, in the end, most inclusions of art located in public places into pictures and videos is fair use. The usage is incidental and the transformative. The derivative work you create is substantially original and the inclusion of the images is merely a small or de minimis part of the work.
Of course if you created commercial videos, such as sponsored videos or using photos in an advertising campaign, without the addition of substantial original elements, it would be an entirely different question.
Lior Leser, Esq.
Technology, Internet and Software Law
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