more re photo prohibitions and fair use

(invisible art)

I'm not the least surprised that I've gotten responses (in comments, emails, and conversation) of all kinds to my several posts on the subject of gallery photo prohibitions. What I have found surprising is the fact that even when they support the idea of openness in general it seems that many people remain confused by the legal issue of accessibility as it relates to copyright.

I know that with this post I'm really asking to be inundated with arguments from all sides, but the issue isn't disappearing and I don't think, especially as photographers, that we should be feeling around in the dark.

I'm confident about arguing for openness, but I'm not adequately versed in the case law which supports it, so in order to shed some light on the issue I turned to someone who is. Artist and activist Joy Garnett had to become an expert when her work, which reflects the issues of access and alteration to images found in the media, was challenged by a photographer in 2004.

First off, there's simply no legal basis for a photo ban based on the argument of copyright infringement. Quoting from the excellent Fair Use Network site:

The fair use doctrine permits anyone to use copyrighted works, without the owners' permission, in ways that are fundamentally equitable and fair. Common examples of fair use are criticism, commentary, news reporting, research, scholarship, and multiple copies for classroom use.
Staying specific to the discussion here, Garnett emphasizes that in the U.S. film or photographic documentation for purposes of reporting or reviewing, as well as for scholarship and education, especially if it's non-commercial, is protected in the Constitution under the doctrine of fair use.

The Fair Use Network site continues with this sorry advisory:

Unfortunately, creative industries are often overly cautious in establishing their informal practice guidelines, with consequences that unduly restrict the exercise of fair use rights.
And that's where we are today. When galleries tell us that we are not permitted to take pictures, they aren't protecting the artist. More likely, they're protecting what they see as their responsibility to control what's going on in their private bailiwick. It may be counterintuitive, and counterproductive to the interests of the visual artist, and of the arts in general, but it is very a part of much human nature.

For more on the subject of fair use and free expression, go to The Free Expression Policy Project [FEPP] site, or the "fair use" entry on Wikipedia.

Now for a change of air, and an excellent immersion course on a topic only partly related to the subject of this post, "Artists, Documentarians and Copyright", see the excellent Hungry Hyaena.

[image from abandonedbutnotforgotten]

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Published on January 7, 2008 12:21 PM.

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