Re: [Leica] Re: Copyright questions

["Mxsmanic" <mxsmanic@hotmail.com>]

Austin Franklin writes:

> That is not the same.

Actually, it is.  Both the sculpture and the photo are fixations of a creative
work in a tangible medium.  Copyright controls the making of such embodiments of
a creative work.  Taking a photograph is one form of such an embodiment, so
taking a picture is generally assimilated with making a copy of a work.  The
actual medium used is typically not relevant, particularly for works of purely
artistic value.

> Replace photograph (sculpture) with automobile.

An automobile is a tool, not an embodiment of a purely creative work, and as
such, copyright usually is not asserted or enforced for automobiles (although,
in theory, the designer of the automobile has a copyright on the design).

> Can you use pictures of YOUR car in a magazine,
> of course.  Can you use pictures of YOUR car in
> an advertisement, of course.

Not necessarily.  It depends on how central the make and model of car is to the
use of the image.  You might need a release for certain uses, although this is
pretty rare for something like a car.

> Why do you think a sculpture is any more a work
> of art than a car is?

The thing is, a sculpture is a work of art, but not really anything else.  A
car, in contrast, is a tool first, and a work of art only second or third or
beyond.  So copyright is important for sculpture, and far less so for a car.
The revenue potential of a sculpture depends exclusively upon having control of
the creative essence of the work, whereas the revenue potential of a car depends
mostly on its utility as transportation.

> If photographers had to get permission to use
> EVERYTHING used as props, there would be no
> photographs.

That's true, and that's why there is such a large gray area in this domain.
That is also why releases are not always necessary in practice.  However, taking
a photo of a scupture alone serves little other purpose than to make a copy of
the sculpture, so to speak, and so any commercial use of that photo is very
likely to require a release.

> Pens, watches, benches, cars, buildings,
> cameras...trinkets on a desk....

The same rules potentially apply to all of these, but real-world practices
differ.