In today’s social media-driven world, it seems that art fairs and gallery openings are becoming more about taking selfies with your favorite pieces than it is about buying any art. With so many images of artworks running rampant on the internet, we have to ask ourselves – is it copyright infringement? Or can the practice be considered fair use?
If you’ve ever been to an art fair, a gallery, or a museum, you’ve probably noticed people snapping photos of artworks with their iPhones and uploading them to Instagram or Facebook. While most museums have a no photos policy, most galleries and art fairs allow the practice because it seems to be good for business. After all, social media is basically free marketing, right?
Lately, however, more and more gallerists are questioning whether this practice is fair to them. Often times, art fair goers and gallery visitors aren’t necessarily serious about buying – they’re more interested in perusing and enjoying the fair, curious about what’s going on in the often-exclusive art world. In many cases, students and burgeoning artists are attending to get ideas, and taking photos is a critical aspect of getting inspired and understanding how a particular artistic flourish was achieved. Whether the fact that a photo of an artwork is circulating around the internet affects the work’s value remains to be seen, but it’s understandable that gallery owners intent on selling these works would be miffed.
Additionally, a whole host of issues can arise if these kinds of practices are allowed to happen, from copyright infringement considerations to blatant copying and more. On the other hand, artists can stand to receive some benefits from allowing their work to be disseminated across the internet, and whether or not this practice constitutes copyright infringement isn’t so cut and dry. We’ll discuss arguments for and against below.
Is Posting a Photo of an Artwork to Instagram Copyright Infringement?
In an earlier Art Law Journal post, we discussed whether snapping a photo of a Renoir for social media constitutes copyright infringement. It’s an excellent example to use because the question largely depends on whether or not the work still enjoys copyright protection in accordance with the Copyright Act.
According to the Copyright Act, copyright protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Copyright protections grant exclusive rights, including the right to reproduce, distribute, perform, display and create derivatives of the work.
It’s equally important to identify the duration of the life of a copyright’s protection in order to get a sense of whether posting a photo to Instagram violates copyright infringement. Under the 1976 Copyright Term Extension Act, affectionately nicknamed the Mickey Mouse copyright act due to Disney’s extensive lobbying efforts for the passing of this enhanced term of copyright protection, a work is initially protected “throughout the life of the author, plus 50 years after the author’s death.” In addition, the Act created a static seventy-five-year term (dated from the date of publication) for anonymous works, pseudonymous works, and works made for hire. The extension term for works copyrighted before 1978 that had not already entered the public domain was increased from twenty-eight years to forty-seven years, giving a total term of seventy-five years. In 1995, the Act was increased even more substantially, offering protection to the duration of the author’s life plus seventy years for general copyrights and to ninety-five years for works made for hire and works copyrighted before 1978. After that, a work has officially entered the public domain and is no longer protected by copyright law.
When it comes to our Renoir example, determining whether or not taking a photo of the work is fairly easy, since Renoir has been deceased since 1919. That means, however, that taking images of more current works of art would most certainly be considered copyright infringement since it’s a reproduction of the work.
Wouldn’t a Photo Be a Totally New, Copyrightable Work?
In our prior article, we discussed whether the fact that you’ve taken a new photo wouldn’t create a totally new, copyrightable work as a matter of fact since copyright is generally assigned to artwork the second it’s created. First of all, unless the work has already entered the public domain, you won’t be able to claim that your taking of a photo does not constitute copyright infringement. Second, even if the work were free of any copyright protections, the photo you take won’t necessarily be considered copyrightable.
According to the Act, a work has to be “original” in order to receive copyright protection. When you’re taking a picture of somebody else’s work, you’re not being original, you’re just being a copycat. However, the act extends this kind of protection to flat paintings or pictures only. Photos of 3D works, such as sculptures, would be considered copyrightable because they require the photographer’s consideration of shadow, angle, lighting, and depth of field.
What About Fair Use?
Some might argue that taking a photo of an artwork at a fair, gallery or museum might be considered fair use. As we’ve discussed previously on Art Law Journal, taking a photo of a copyrighted artwork might be considered fair use depending on the following factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Against all of these factors, it seems that taking a photo of someone’s artwork is nothing more than a blatant copying of that person’s work. Even if you don’t benefit from it financially, you’re still taking someone’s entire creative product and posting it to your social media without permission. And since you’re likely taking a photo of the artwork in its entirety, there’s no real argument to be made regarding whether or not you’ve used a substantially minimal enough portion to constitute fair use. Moreover, if you’re simply taking an image of someone’s work, without making any kind of alteration or commentary on the work and its subject matter, you’re not really enhancing the work’s creative expression, which is ultimately what fair use intends to encourage. Finally, if there’s a photo circulating on the internet of an artwork, that would likely diminish the work’s value, because it would seem far less exclusive to a potential collector.
So Why Does the Practice Go On?
If the guidelines are so clear as to whether or not it’s okay to take pictures of artworks at art fairs and galleries, then why is the practice so rampant? For many gallery owners, the idea that visitors are interested in anything but a selfie opportunity is silly. Most of the photos taken while works are on public display won’t have any resale value because the resolution wouldn’t be high enough. In fact, most people wouldn’t even think to sell photos of artworks online – that’s simply not the point of the practice. Instead, gallerists tend to take the view that marketing is marketing, and it’s even beneficial for artists to have their works shared on social media – particularly if the person doing so is a celebrity. At the end of the day, no one wants to be the one booth at the show that doesn’t allow photos to be taken, unless you’re interested in ensuring that your booth remains empty. It may not be the best situation, but unfortunately, the alternatives aren’t really an option.
How do you feel about patrons taking Instagram photos of artworks art fairs?