LEGALLY SPEAKING - PAUL SUGDEN

PHOTOGRAPHIC MEMORIES? - OR A LEGAL LIABILITY?

A little known exception under the Copyright Act 1968 states that it is NOT an infringement of copyright in a sculpture or work of artistic craftsmanship that is displayed permanently in a public place - or in premises open to the public - to make a painting, drawing or engraving or photograph of it, or to include the work in a television broadcast or film.

This exception was originally designed to cover works which were predominantly found in parks, streets or in places where it was impractical for the owner to control the copying. You couldn't stop the tourists wanting their photograph taken beside the statue of Queen Victoria (one seems to be found in nearly every town in Australia), or the statue of Julius Caesar in London, by turning up and demanding a royalty be paid to the sculptor before the photo was taken!!

This scenario may be commercially unrealistic to police, so the exception was granted. With the development of technology, and the fact that more and more exhibitions are occurring, this exception begins to have greater relevance.

It only apples to sculptures and works of artistic craftsmanship - not to paintings, drawings, engravings, maps plans, charts, photographs or other works that are displayed in art galleries. The consequence can be a problem in the textile areas like wearable art, tapestries, other weavings - if they fall into the concept of "work of artistic craftsmanship" rather than being a two dimensional artistic work with separate copyright as an artistic work.

If the 'wearable art' is considered a sculpture, or work of artistic craftsmanship (rather than being based on an original drawing) then when it is displayed permanently in the public arena the artist or artists would lose copyright protection, making it impossible to prevent people photographing the work and even selling copies of the photographs.

This has occurred with a set of dolls developed by an artist - they were photographed in a gallery where they were on display; then reproduction of these dolls appeared in Japan. The artist could not prevent the production of the photographs, nor could the gallery who'd hoped to sell their own postcards of the dolls.

What is a work of artistic craftsmanship? There is no definition in the Copyright Act as it is a phrase used as a catch-all provision in the definition of an artistic work after stating that an artistic work is a painting, drawing, engraving, photograph or sculpture where the work is of artistic quality or not.

The artistic quality of the 'work of artistic craftsmanship' has to then be judged from an objective, not a subjective point of view, that is, what a reasonable person looking at wearable art or a weaving would believe was artistic, not what the artist themselves believed to be the reason for doing the work.

However, it is still necessary that the producer of the work had some artistic purpose in producing it. For example: courts have rejected a claim by a motor mower manufacturer that the drive shaft of his mower was ' a work of artistic craftsmanship' - nor was the Cuisenaire system for teaching mathematics deemed a work of 'artistic craftsmanship'. In the first case, the purpose was not artistic; the purpose was a motor mower. In the second case, the intent was to create a method of teaching mathematics, which was not in itself artistic in nature.

In a recent case of Coogi Australia versus Hysport International, the court held that the mass produced Coogi jumpers were works of artistic craftsmanship as they had a real aesthetic quality. Wearable art is likely to be considered as an artistic work of craftsmanship (which may therefore be legally photographed when displayed in a public place). So the issue of display and photographs is indeed a complex one.

If the work is permanently on display then the artist looses the right to prevent photographs, engravings and drawings of the work being down. But if the copies are used to reproduce the article itself, this does not fall within the exception so the artist can prevent the reproduction of the wearable work as an article of clothing.

The major issue revolves around the work being on temporary display only. There is only an argument that it does not fall into the exceptions, as the exceptions say 'permanent display to the public or accessed by the public'.this argument hasn't been fully resolved by the courts and is a fact that it still is to be debated.

The way to gain some control, and prevent there being disagreements is to ensure that galleries do not allow the photographing of your works, other than with your permission. The gallery must enforce this requirement for entry into the exhibition so that not photography is allowed. In this way the effects of this exception will be minimised, to the benefit of the artist.

Artists could then agree in advance to the use of photographs of the work or works, for tickets, catalogues, etc. to assist the gallery in promotion, but these copies can be controlled by agreement between the artist and the gallery.