Recently, by way of a few online forums, I became aware of an issue that I thought was in need of some serious attention. As a professional sand sculptor I have become used to having photographers of every skill level taking photos of my work. Until recently, I never gave it much thought about where those photos would end up or even for what purpose they may be used. Many of you reading this have undoubtedly at one time or another received an email containing photos of several of the coolest sand sculptures ever created. The lingering question that remains is, who exactly holds the intellectual property rights to these photos? I hope to clear up all the confusion surrounding this complicated topic
Intellectual rights In almost every instance it is the photographer that owns the intellectual property rights of his or her photos. The confusion seems to arise when those photos contain works of art. When a photo contains something that is protected by copyright law such as a painting or sculpture it can not be reproduced without permission from the creator of the painting or sculpture. Even if only a portion of the painting or sculpture appear in the photo, permission still may be required. There is no set standard on how much of the work appears in the photo. The key factor is something referred to as “substantial part”. If a recognisable element of a sculpture is featured on a photo no matter how small, permission for use is required.
Some exceptions If a photo is used for a news story or as part of a critique then no permission is required for one time use. Additionally if a sculpture or work of art is on permanent display in a public area then there are no restrictions set on commercial use. This rule does not apply to works of art on temporary display.
Known violations You may think that professional photographers are the biggest offenders of these rights. The truth is that professional photographers are well aware of copyright and intellectual property law. Many of them have been exposed to the same infringement as the artists and sculptors I have mentioned in this article. With the age of the cell phone camera and photo sharing sites like Flickr and Facebook it is not only the average person but also a horde of internet entrepreneurs that have taken the top honors when it comes to copyright infringement. There are currently no less than two dozen iPhone and Android apps that contain unauthorised use of professional sand sculptors artwork. In addition get rich overnight bloggers regularly steal these images from Flickr accounts to attract more visitors to their blogs.
Stop the abuse I’m not advocating a massive class action law suit to put an end to this rampant abuse of intellectual property rights. There are easier ways you can help put a stop to this abuse and protect your intellectual property rights. To report violations in the Android market follow this link. To report violations to the Apple market follow this link. The best way to protect yourself as an artist is to be aware. Try doing periodic searches on the internet. A good search term is “sand sculpture calendars”, another is” sand sculpture photo books”. If you find any evidence and feel your rights may have been violated, try contacting the author or publisher directly. It never hurts to try to settle these disputes out of the court room. If you feel you are not getting any results, it may be time to contact a copyright attorney. The next time someone asks to take a photo of one of my sand sculptures I will kindly say, “yes, for your personal use only.” If someone is thinking about using my work for profit, hopefully this will kick-start the necessary conversation…One Grain at a Time.Share on Facebook