Music Publishers Force Another Lyric Site Offline

Copyright Sillyness: Can't Take Photos Of Artwork That Was Built On The Works Of Others

from the can-only-copy-once? dept

Wed, Jan 6th 2010 10:04pm — Mike Masnick

Clive Thompson has a blog post about how he took a photo at a Canadian art gallery of his son staring at a painting, after noticing how similar some paintings from a hundred years ago were to some modern paintings done by a friend -- and recognizing that both were actually inspired by a third school of art. He notes that he was able to appreciate the old paintings much more (despite having seen them years ago) because of his understanding of his friend's more recent paintings. And immediately after snapping the photo, he got in trouble for it, as the museum said it had to block photographs for copyright reasons. As Thompson explains:

It reminded me of a point often made by folks who fight overly-aggressive copyright laws: All new art is based on art that came before, so copyright law ought not to be too rigid. If you can't remix and resample and re-use art -- after a reasonable term of exclusivity for the original creators, who in this case are long dead -- then culture dies. More subtly yet, our appreciation for earlier art dies if our contemporary artists cannot easily plunder the styles and content of their forebears.

The irony here is that the instant after I snapped this picture, the security guards of the Art Gallery of Ontario raced over to (politely) warn me that I wasn't allowed to take pictures. Why? Well, some art galleries disallow photos because flashes can damage paintings, a prohibition that makes total sense. But my iPhone doesn't have a flash. No, the Art Gallery of Ontario prohibits photographs of artwork because of copyright restrictions.... It's even more daft when you consider that I'm basically doing free promotion here.You want people to visit galleries? Well, surely one good way is to let visitors take and post photos of their little kids spellbound by major works of art.

Many copyright defenders continue to insist that nothing is "lost" by stricter copyright rules, but you can't always quantify what never happens -- and Thompson does a good job showing how overly restrictive rules can, in fact, limit how we learn or appreciate art, by flat out limiting new ways that people can get exposed to works.

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Filed Under: artwork, copyright, inspiration, painting, understanding

54 Comments

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The Anti-Mike (profile), 6 Jan 2010 @ 10:11pm

He makes one mistake, one truly huge error in his line of thinking that would change the entire story:

I'm basically doing free promotion here

That isn't his choice, that choice should be up to the artist and the people showing the work. If they don't want your free promotion, you shouldn't just foist it on them anyway.

Thompson does a good job showing how overly restrictive rules can, in fact, limit how we learn or appreciate art, by flat out limiting new ways that people can get exposed to works

No, it only shows that Thompson thinks he can tell the artist what to do and how to share his work. That is the artist's choice, and the exhibitor's choice for the time that the painting is in their gallery.

It is incredibly arrogant to assume to tell the artist and the exhibitor how to show off their work.
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Anonymous Coward, 6 Jan 2010 @ 10:40pm

Re:
Oh, I see you've found your new buzz word. What will next week's be?
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Degoutee, 6 Jan 2010 @ 10:58pm

Re:
So...if an art critic writes a descriptive review...and it's bad (perhaps the critic finds the work too derivative of older styles?)...is the critic not allowed to say so...because the artist obviously doesn't want any bad reviews...since the artist doesn't want that kind of promotion?

Are we allowed to talk about what we see? Shall we all strap on our blindfolds at the entrance to MoMA?

Shall we contruct boxes to wear on our heads to prevent any input that we might infringe upon in the future? Shall we all have lobotomies to wipe out potential infringement from things seen or heard in the past?

Could you make life suck any harder by expecting this crap is good for anyone, including the artist?
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Bubba Gump (profile), 6 Jan 2010 @ 11:41pm

Re:
I find it incredibly arrogant to say that artists and exhibitors are the sole concern in this equation.

What happened to the audience?

Look, rap our knuckles enough times when we try to do simple things like photograph our kids and we will just stop going to these exhibits.
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fig neutron (profile), 6 Jan 2010 @ 11:44pm

gallery photographs
Most galleries disallow photographs due to the donation of private estates. If the painting (or artwork) was donated, for example, it belongs to a private collection, and the owner of the estate has specified that the artwork cannot be reproduced (photographed) without consent. I don't know precisely what the provenance of the work is and the AGO's policy, but surely a simple asking would have eliminated embarrassment.

That's what I found out about the Chicago Art Institutes collection (free photographs for everything) and the V&A in London (NO pix of private donations - that was in 1973). All I did was ask.
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kyle clements (profile), 7 Jan 2010 @ 12:24am

hmmm...
The painting is by Lawren Harris, who died in 1970, so there's only 10 years to go before this image is un-illegalized.

I wish this story had been posted yesterday. (Wednesday night is free night at the Gallery, and I live within walking distance.)

I would very much like to take my big DSLR and very obviously photograph the paintings, but only those from the 18th century and earlier, since they have long ago slipped out of copyright and have now entered the public domain.

What would their reaction be in that case?
Would they let it slide, or try to argue some other ridiculous reason

Off topic: I generally find the museums and galleries in Toronto to be very cold and uninviting. I don't get hassled at all in New York, even the private, commercial galleries showing contemporary work don't seem to mind some photos being taken. But if you're in Ontario: watch out. They'll break the Canadian stereotype, and actually be quite rude to you.
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Lawrence D'Oliveiro, 7 Jan 2010 @ 12:39am

Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re;
The Anti-Mike vacuously claimed:

I'm basically doing free promotion here

That isn't his choice, that choice should be up to the artist and the people showing the work.

Since when did “copyright” include “promotion rights” as well? What is this, we’re not allowed to tell other people what we think of this work?
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yogi, 7 Jan 2010 @ 12:47am

Re:
So much confusion in one mind , its a wonder yours doesn't explode.

Society - people like Clive - are the ones granting permission to the artist to benefit from his work, as long as society's rights and privileges are not abused.

Society enables creativity, and therefore regulates its use, one of which is the continuation of culture, upon which society depends. Artists or institutions who are willing to sacrifice the group that gave them life and the tools to create, for their own momentary needs, should be discouraged and penalized.

Currently it is exactly the opposite - copyright is used to abuse society for personal gain, while destroying wide swaths of our culture.

We should be discussing the punishment that this gallery should receive for abusing copyright and shutting down our culture.
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Ralph-J (profile), 7 Jan 2010 @ 1:05am

Copyright probably has nothing to do with it
Is taking a picture in itself a copyrightable action? The adherence to copyrights can only be evaluated once (already-taken) pictures are somehow being re-used. At the time of the pictures being taken, you can't really know, what they are going to be used for. E.g. they could be used for private enjoyment at home, which (in the case of photography) isn't covered by copyright restrictions. Once you want to publish or re-use them, a number of copyright rules could come into effect, e.g. use in news reporting, fair use, commercial use etc. And only in the case of commercial use, the artist has a say in limiting the usage, charging money etc.
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bob, 7 Jan 2010 @ 1:07am

PNG in Canada
Thank god I don't go to art galleries over in Canada unless you consider taking in the Ballet every once in a while "art."
I do
Funny, your not allowed to take pictures in there either.

PNG=persona non grata
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:), 7 Jan 2010 @ 1:54am

Movie makers and photographers.
Some people seems to think that "derivative works" encompass a lot of things.

Well then the movie industry should be paying tonnes of money to a lot of people.

And photographers should never be allowed to take pictures of people they don't know or failed to secure the rights to display their images.

It does get silly pretty quickly.
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Bas (profile), 7 Jan 2010 @ 2:58am

According to Anti-Mike's logic, we shouldn't even to be allowed about anything that has ever been copyrighted without the express permission of the copyright holder.

Imagine such a world.
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Lucretious, 7 Jan 2010 @ 2:59am

Re:
You really are just bereft of attention sitting there at home there aren't you cupcake....

Do you get depressed when Mike writes his last piece of the day? Are your weekends a bleak gray splotch until Monday morning rolls around and Mike bangs out some fresh commentary once again?

Just curious.
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Headbhang, 7 Jan 2010 @ 3:24am

Re: Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re;
Some dude: "Hey Anti-Mike, what did you do over the weekend?"
Anti-Mike: "I went to see a movie. Avatar."
Some dude: "Cool. What did you think of it?"
Anti-Mike: "Sorry, can't comment. Haven't got a promotion license."
Some dude: "Aw, come on! Should I go see or not?"
Anti-Mike: "Sorry. I'm not allowed. There is a poster for the movie. Look at it and decide for yourself."
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DS, 7 Jan 2010 @ 3:58am

Re: hmmm...
You must not be from around the border... rude IS the sterotype...

at least Rude when they are in the states.
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The Anti-Mike (profile), 7 Jan 2010 @ 5:35am

Re:
Not at all, nice to see people take things way out of proportion. When I read stuff like this, I can understand how you can think that piracy is a good thing too.

All I am saying is that the painting is displayed in agreement between the rights holder (could be whoever owns the painting) and the gallery. They decide what the rights are for viewing within their private gallery.

Technically speaking, you are seeing it only because they are allowing you to see it. Otherwise, they could keep it private and you would never see it, and it would be well within their rights.

If the painting was hanging in a public space, the discussion would be different. It is not.
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Christopher (profile), 7 Jan 2010 @ 5:43am

So toss copyrights.
What's the harm in tossing a copyright after demise?
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Anonymous Coward, 7 Jan 2010 @ 5:58am

what that museum did was illegal
you just tell them your putting them on a levied cdr
ya know
the blank MEDIA levy

a photo is media....
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PaulT (profile), 7 Jan 2010 @ 6:06am

Re: Re:
"I can understand how you can think that piracy is a good thing too."

It's a shame that you can never comprehend how that's not what most people here ever argue.
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Michial Thompson, 7 Jan 2010 @ 6:25am

Re: hmmm...
Their restrictions are simply that they do not allow photographs of the artwork on THEIR PROPERTY.

When will you idiots get it through yout thick skulls that the owner of something DICTATES what and how it can be used.

Maybe when you idiots start learning to respect others property and rights there will be no need for more and more restrictions.

I don't know what is worse mikees nonstop whining or the bullshit coming out of the keyboards of the commentors.

Copyright is there to protect the creator, when you screw the creator by trying to force your will on them, then the creator pushes back through the law, then you screw more and they push more. If you don't like what they want or how they want it sold then do without their creation and move the fuck on and quit whining.
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Valkor, 7 Jan 2010 @ 6:38am

Re:
Thompson isn't telling the "artist" (deceased, by the way) how to "share" his work. You're conflating two separate ideas.
(1) Thompson is saying that this type of restriction makes no sense to an ordinary person.
(2) The gallery is trying to restrict Thompson's right of fair use in a situation where it is not warranted. Fair Use, or Fair Dealing in Canada, allows exactly these sorts of uses. A picture of one's son looking at a painting is not a reproduction of a famous work of art. Ceci n'est pas une pipe, indeed.
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Wow, 7 Jan 2010 @ 7:02am

Re: Re: hmmm...
Wow.
Nice rant dude.
I suggest you research the meaning of the word idiot.
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Whisk33, 7 Jan 2010 @ 7:17am

Assumed exclusivity
"If you can't remix and resample and re-use art -- after a reasonable term of exclusivity for the original creators... culture dies"

I where the requirement of exclusivity comes from and why it is assumed to be required at all. If releasing that exclusivity promotes culture, is it a fallacy to say, that it should be released immediately?
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John Fenderson (profile), 7 Jan 2010 @ 7:21am

Re: gallery photographs
"Most galleries disallow photographs due to the donation of private estates."

Except that doesn't explain anything at all. Firstly, if the art is old enough then it's in the public domain anyway -- who owns the originals is not relevant. Secondly, the photo taken as described in the article is clearly fair use and not a copyright violation even if it was not in the public domain -- who owns the originals is not relevant. (Disclaimer -- I'm talking US law, I don't know about UK)

So, any gallery who prohibits such photos because of public donations is being particularly nasty, because they've sold your rights for some $$$.
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John Fenderson (profile), 7 Jan 2010 @ 7:26am

Re: Re: hmmm...
"Copyright is there to protect the creator,"

Only half right. Copyright is a deal between the public and the creator. They get a limited-time monopoly, then the public owns it. It is not an expression of some natural ownership right the creator has over the work.

Copyright does not exist to benefit the creator, it exists to benefit society.
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Anonymous Poster, 7 Jan 2010 @ 7:29am

Re: Assumed exclusivity
No, it shouldn't. Artist have a reasonable right to be compensated for their work, and copyright ensures that this will happen.

However, copyright as it was originally envisioned (with short terms of copyright) is far different than the copyright we have today (where terms can last over two generations of humanity before the public domain is anywhere in sight).
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Michial Thompson, 7 Jan 2010 @ 7:42am

Who cares what Canada allows
If the museum does not want pictures taken on their property it doesn't matter what Canada allows...

If you don't like it then go somewhere where they will allow you to take pictures of your brats
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TDR, 7 Jan 2010 @ 7:52am

Re: Who cares what Canada allows
I don't know about you, to me, calling a man's kid a brat is the height of rudeness. I'm a father myself, and if it were possible I'd reach through the monitor and slap you upside the head for what you just said. You owe the man an apology. Now.
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Degoutee, 7 Jan 2010 @ 8:01am

Re: Re:
Indeed, and I'd like to see someone deny a parent the 'right' to take a photo of his/her own child in any setting, especially in this case where the child was the subject of the photo in the first place.

Would seem this idiocy will persist until fair use is the established right it should be, instead of an affirmative defense you only get to use when you're sued.
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Anonymous Coward, 7 Jan 2010 @ 8:10am

Re: Re: Assumed exclusivity
Copyright has nothing to do with compensation, as it doesn't instruct on business models at all. Copyright is not a government-mandated income generator. Copyright in no way means you get paid for what you create.

I mean, if no one cares for your copyrighted stuff hence no one buys it, don't expect copyright to bail you out of your own fail.
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RD, 7 Jan 2010 @ 8:28am

BULL F-SHTI
"If the painting was hanging in a public space, the discussion would be different. It is not."

hahaha you are a FUCKING LIAR! I call you out, liar. You and everyone here knows good and GOD DAMN well that you would NOT take such a position, ever.

You only see copyright issues one-way: absolute control by the rights holder. This is not, and never has been, part of the copyright contract with the public. Read the fucking constitution: LIMITED rights, LIMITED times. Not eternal, absolute control.

You lie from your mouth when you make a statement like that. You most assuredly WOULD argue the SAME point if it was in a public place. LIAR.
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RD, 7 Jan 2010 @ 8:30am

WRONG!
"When will you idiots get it through yout thick skulls that the owner of something DICTATES what and how it can be used."

No it does not. Read your constition, and the law. LIMITED rights, LIMITED times.

"Maybe when you idiots start learning to respect others property and rights there will be no need for more and more restrictions."

Copyright is not property. Ideas are not property.

"I don't know what is worse mikees nonstop whining or the bullshit coming out of the keyboards of the commentors."

You would know...

"Copyright is there to protect the creator, when you screw the creator by trying to force your will on them, then the creator pushes back through the law, then you screw more and they push more. If you don't like what they want or how they want it sold then do without their creation and move the fuck on and quit whining."

Exactly! So please do so. The arrow points both ways here.
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Anonymous Coward, 7 Jan 2010 @ 8:37am

Re:
artist is dead...
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jjmsan (profile), 7 Jan 2010 @ 8:43am

Owners Rights.
I think Mr Thompson should have respected the museum's wishes. Every time he wanted to take a photo of his son the guards should have had to hide all the artwork in the background. That way he could have recorded his visit and the museum could have protected their interests.
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Anonymous Coward, 7 Jan 2010 @ 9:26am

Any art that would be devalued by having someone take a picture of it with an iPhone is pretty crap to begin with.
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Anonymous Coward, 7 Jan 2010 @ 9:55am

Re: Re:
And none of that changes the fact that their decisions can still be discussed as dumb (oh no, I used that evil word!).
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Anonymous Coward, 7 Jan 2010 @ 9:56am

As an artist I am really starting to hate art.
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Anonymous Coward, 7 Jan 2010 @ 10:19am

Re: Re:
Let them shut down our culture. We'll just make some more that cannot be shut down.

The future will not be kind to the control freaks.
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The Sarcastic-Mike, 7 Jan 2010 @ 10:38am

Re: Re: Re: hmmm...
But copyright should never benefit society or the public. They're all just a bunch of leeches and parasites stealing from the precious artists who must be protected from everything. Including the public mobs! How dare they upset a long dead artist?!?

Have they no respect for culture and art? Have they no decency?
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Anonymous Coward, 7 Jan 2010 @ 10:39am

Re:
Anti-Mike trolls again, site staff does nothing.

Call CNN, that's news right there.
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Anonymous Coward, 7 Jan 2010 @ 10:41am

Re: Re: hmmm...
RAR RAR PRIVATE RIGHTS ALL IS FOR THE GOOD OF THE MONEYED RAR

For your own sake, shut up.
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kyle clements (profile), 7 Jan 2010 @ 11:11am

Re: Re: hmmm...
Did you miss the part where I said I would be photographing art from the 18th century and earlier?

The work I would be photographing would be in the public domain, the creators are all dead.

If they ask me to leave because of copyright issues, they are liars.
They could argue that I'm trespassing if I continue to take photos after being asked to stop, but that is in no way related to copyright or protecting creators.

Even in the case of this article, how does taking a photo of half a painting screw the creator of the art work? He's dead. In fact, this artist has already set records for the prices of his paintings.

If you want to talk about screwing the creators of an art work, how about people who buy a painting for a few hundred bucks, then re-sell if for a few hundred thousand. Would you argue that the artist is entitled to a chunk of that resale price?
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The Groove Tiger (profile), 7 Jan 2010 @ 11:59am

Re:
You are doing the "arrogant" / "not arrogant" thing.
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Anonymous, 7 Jan 2010 @ 1:38pm

Proof?
I would be asking the guard to produce the document authorising them to enforce the copyright of the artist. I doubt they would be able to produce anything.

I'd actually laugh quite hard if Le Louvre enforced copyright on the Mona Lisa or Het Rijksmuseum enforces copyright on De Nachtwacht.
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Bob Webster (profile), 7 Jan 2010 @ 2:09pm

The Louvre
That Louvre lets me take photos. Some two-bit gallery in Ontario won't. Which one do you think I'll spend my money on? Abuse the customers, and the customers go away.
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Yeah right, 7 Jan 2010 @ 4:30pm

They even have guidelines for sketching!
Check out the museum's FAQ: "Before you sketch, please ask for guidelines at the Information Desk." The FAQ unfortunately doesn't elaborate, apart from saying that you can't use a pen.

Could the poster living within walking distance please check these guidelines and post them?

There's a comedy series in there somewhere, 'Fawlty Towers' in the art world. I'm reasonably confident that the management considers visitors a necessary evil, and would like to get rid of them all together. Way to go.
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Only an artist, 7 Jan 2010 @ 4:57pm

Calm down already
People who take pictures instead of looking at the 'picture' are the pits and an irritation/problem in public gallerys. The Louve is such a sea of flashing tourists that it is virtually impossible to actually see pictures like 'liberty leading the people' (an irony that would not be lost on the aristocratic dandy that painted that revolutionary call to arms).

Galleries make a nice earner on the sale of Memorabilia -- postcards, books ect. Personal private photography threatens this source of income & is rather annoying .
'Copyright' is in this case almost certainly a phantom- a boggie man used to try and stop/limit the obsessive photographing of virtually everything that is modern life.

"visitors a necessary evil"
Visitors get in the way of looking . Perhaps they could just line up at the side of the building and get a download, a plastic sandwich and a virtual life .. No?
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Anonymous Coward, 8 Jan 2010 @ 1:29am

Re: Calm down already
Been to a major event recently? You'll probably see a sea of cellphones pointing at the major event. People like taking photographs. Of everything. I guess it sucks for art appreciation but then so does intellectual property.
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Hoagy Kearns, 20 Jan 2010 @ 10:16am

photos used by Daniel Moore
I have long been a big fan of Daniel Moore and have a few of his prints. I have always wondered where he gets the photos to paint from. I have seen these photos. Does he pay for them or just paint from them without paying for the right to do so?
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Anonymous Coward, 23 Jan 2010 @ 10:11am

can you get fined for using a copyrighted photo or do you just have to take it off
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Anonymous Coward, 17 Jun 2010 @ 10:57am

Re: Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re; Re: Re: Re: Re;
It always has. It falls under the Ecomonic Rights.
Technically taking a picture of an artwork is a form of copying, given the person taking the picture has not been given documented permission by the artist.

Taking a picture and giving an opinion of the artwork are two very different things.

PS I'm not trying arguing with you, I'm just pointing these out. :)
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S., 21 Feb 2011 @ 11:42pm

Jeez, what a needlessly rude comment... I can't imagine what you must feel all the time if you have the need to talk to people like that.
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S., 21 Feb 2011 @ 11:44pm

Re: The Louvre
Yes, but that may have something to do with the fact that most (all?) of the works in the Louvre are by artists who are long dead.
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Jon Eastman, 27 Mar 2011 @ 8:34pm

W
Well Spoken!
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