The question of whether photos of other copyrighted works (such as sculptures) are infringements remains. Specifically, as explained by my November 17, 2009, blog, courts have disagreed as to whether photographs of copyrighted works are derivative works. This also was the issue when sculptor, Jack Mackie, sued photographer, Mike Hipple, because Hipple “used the image of [a part of the sculpture] in a piece of graphic art . . . [and] obliterated Mackie’s copyright notice, but used other parts of the rest of the [sculpture].” Hipple had offered the image for licensing through stock agencies. Just before trial, Hipple and Mackie settled their claims.
The U.S. Court of Federal Claims considered similar facts and legal issues in the Gaylord v. The United States case. The facts are convoluted, but, in sum, the artist of “The Column” (a sculpture depicting 19 Korean War soldiers that is part of the Korean War Veterans Memorial KWVM in Washington, D.C.) sued the USPS for its stamp that contained a photo of the work. While the trial court first held that the stamp was a fair use, the appellate court ultimately held that the stamp was an infringement.
Last week, the Court of Appeals for the Seventh Circuit reviewed a Magistrate Judge’s holding that Quincy Neri’s copyright registration for her sculpture was defective. The sculptor had sued others for using photos of her sculpture on web sites (including Flickr), a newsletter, and an application for an architectural award to show renovation work completed around the sculpture.
The Seventh Circuit vacated the Magistrate’s ruling and remanded the case. Significantly, the Court noted that:
On remand, the district court may wish to take up other issues . . . . Another potential defense is fair use. Architectural Building Arts and Sager were entitled to document their own roles in renovating Hughes’s home. It was not possible to show what they had accomplished without displaying the sculpture along with the furniture and other aspects of the foyer. None of the defendants offered the photographs for sale. It is hard to imagine that any viewer would have deemed a photograph of the Hughes vestibule to be a substitute for an original Neri artwork. (Neri does not contend that she sells photos of her works or that the defendants’ activities have reduced her ability to start offering photos or other derivative works. To the contrary, Neri has placed pictures of Mendota Reflection on her own web site, http://www.quincyneri.com/#!glass, which anyone can access for free.) It is also hard to imagine that these photographs reduced the demand for Neri’s art. They seem more like free advertising. But again the parties have not come to grips on the fair‐use issue, so we cannot resolve it on appeal.
While the Seventh’s Circuit comments were dicta, it gives insight as to how it might handle the issue if presented.