LEGALLY SPEAKING

Paul Sugden on: Quilts, Photographs and Galleries

A recent problem has been referred to me. It concerns the conflict between a quilter signing a general permission for a gallery to have the right to "photograph and publish the exhibition items (quilts) for publicity purposes." The quilter who signed this agreement then found the gallery had engaged a photographer who claimed copyright in the photographs he took of the exhibition works and then displayed the photographs on his website as his property.

The quilter originally gave permission for the photographing of the work for a limited purpose - being publicity for the exhibition - but not for the photographer to own the copyright in the photographs or to use them for other purposes. The purpose believed to be covered by the artist was that the work would be photographed for the invitations, the catalogue, advertisements in the paper, etc - not that images would appear as copyrighted work of the photographer, on his website.

In the terms of the artist's agreement with the gallery, the gallery did go further than stated in their contract with the artist and has given something they don't have - ownership of the copyright in the work. This ultimately is a battle between the photographer's written form versus the written contract between the gallery and the artist.

The general rule is that a photographer will only own the copyright in photographs they are paid to take, and/or if they have a written contract stating they own the copyright, (s35 (3)). If there is no written contract signed by both parties then the general rule is that the person commissioning the photographs owns the copyright in the photographs, (S35 (5)).

In situation referred to me, no evidence was given of the existence of the contract, but it is presumed a written contract existed, which has given the copyright in the photographs to the photographer. There is a technicality that the gallery has breached the licence given by the exhibition artists, although on the facts provided, it is probably not intentional but occurred in ignorance of the law.

This gallery problem raises a little known issue in the Copyright Act dealing with the photographing of items in a public space such as a gallery, which means if phtographs are taken without restriction the person taking them can own the copyright in the photograph of the quilt and reproduce the photograph as an owner of copyright in the photographs.

This section is S65 of the Copyright Act 1968 (Cth), which provides that the copyright in a "work" being a sculpture or a work of artistic craftsmanship is not infringed by the making of a painting, drawing, or engraving or photograph of the work, or the inclusion of it in a film or broadcast, if the work is situated, otherwise than temporarily, in a public place or in premises open to the public.

An important proviso exists to this in that it applies only to sculptures and works of artistic craftsmanship. It does not apply to paintings, drawings (including maps, charts, and plans or diagrams), and engravings (including woodcuts, prints etchings or lithographs).

Now for our purposes quilts and three dimensional fabric creations may come into the generally accepted definition of sculpture as a three dimensional work of art, or they can be considered works of artistic craftsmanship separate to drawings of the blocks that make the quilt. The fact that they fall into this definition means that if they are on permanent display to the public the creator has no action against a photographer who photographs them or draws or engraves the quilt from the public display.

The important issue is that the section specifically states it does not apply to works temporarily on display. There is no definition of "temporarily" so the ordinary dictionary meaning applies, of "lasting for a limited time" and therefore not permanent. Hence an exhibition of quilts would comprise a temporary public display, and the rights of a photographer would not exist when it is shown the work was displayed temporarily in public.

The display of a work in an exhibition in a public gallery is temporarily open to the public. Generally galleries do not allow photography of works on display because of this section.

This section has only been raised in two cases, Nine Network v ABC Crop fighting over whether copyright existed in a public fireworks display on Sydney Harbour Bridge; and Yumbulul v Reserve Bank of Australia regarding the use of an aboriginal image of the Morning Star Pole on the 1988 commemorative $10 note, from a photograph taken when the poles were permanently displayed in the Australian Museum. In the Yumbulul case the judge decided the case on the licence terms and did not consider the effect of s 65 except to say that it was an issue for future legislative reform.

Even with this exception, the taking of a photograph of the quilt design from a permanent display would not infringe the copyright in the work, but in our current situation the issue of permanence or temporary display has been overtaken by a contract by the gallery with the photographer. Yet even with this contract the photographer cannot reproduce the design of the actual photographed quilt design as that would still be an infringement of the copyright in the quilt itself.

To prevent these difficulties in the future, it is important to ensure that a gallery restricts the access of people with cameras to any exhibition, permanent or temporary, and galleries should not be giving photographers of the exhibited works copyright in the photographs. This is an issue that ultimately requires galleries to be more disciplined and careful in their engagement of photographers.

Galleries should not sign forms giving photographers ownership of the photographs of the exhibition items, if they did not have the artist's permission to give the photographer the copyright in the photographs.

A gallery should place a clause in any contract with a photographer who has been photographing an exhibition, that specifies as follows: each exhibited artist owns the copyright to the photograph taken of their work; and the gallery has a licence to use the copyright in the photographs for the period of the exhibition. With such a clause the copyright never leaves the artist, and it will revert to the artist once the exhibition is completed. This way the photographer has no rights to the photograph.

Care in contractual terms and discipline in restricting access to photographing exhibitions will prevent this problem, and also prevent arguments arising under s65 of the copyright Act.