Selling my photo of someone else's art

January 14, 2013 11:14 AM

Someone has asked to license a photo I took of someone else's art. I have no right to the artist's work; I took the photo at a museum. I have no intention of licensing my photo unless and until appropriate arrangements are made with the artist and museum. How to proceed?

I took a photo at a site-specific museum installation. The artist is well-known (but deceased), and the museum is established. Photography was permitted in the exhibit, though I assume it was for non-commercial use only.

I received an email asking to license my photo. I have not responded yet. I assume the person realizes that the image is of a work by the artist, and not my own creation (though I will of course impress that fact on him).

As these things go, I think I have a good image of this particular artwork. However, I fully realize that my copyright in the production of the photo does not give me any ownership over the subject matter, which lies in the artist's estate and/or the museum.

I wouldn't mind selling the image, but I would only do so with the consent of the estate and/or museum, as applicable; I have no intention of taking any liability for this image. I don't need the money (or the hassles if this were not papered properly).

How would I proceed? Of course, if the requester is writing an authorized bio of the artist, some of these questions would seem more easily resolved--so I can check in with him. Is this a question that I should send to the museum's media relations line? Will the estate and/or museum typically be separately compensated for their rights here? Can anyone point to a good model licensing agreement that disclaims ownership of the subject matter (to the extent such a form exists)? Also: the would-be licensee is in another country, FWIW.

You are not my attorney. (I am my attorney, though it happens I'm not an IP lawyer.) Again, I don't need the money and have no intention of buying myself a headache over this, so assume I will want to get every release possible for this.

posted by Admiral Haddock to media & arts (12 answers total)

I would probably just not consent to licensing the photo. Refer the requester to the museum that exhibited the work you photographed. They will have a procedure for this sort of thing.
posted by Sara C. at 11:20 AM on January 14 [3 favorites]

I would refer the requester to the museum, or contact them yourself-- if it's a large museum, their contact for inquiries of this nature should be on the website. They will have a licensing policy for photographs of their works (though it might not include photographs taken by visitors, so they may or may not just say that it's fine.)
posted by jetlagaddict at 11:29 AM on January 14

Well, whatever boilerplate licensing agreement you do end up using, make sure there is explicit consideration for usage. This is probably the most significant and often overlooked aspect of a deal, even if you're not seeking money. You don't want to sign over a photo for $5 for use in an article and end up seeing it on book covers and billboards.
posted by phaedon at 11:31 AM on January 14

To be clear, I would only license my photo for money, and for a limited specified use; this is not a Creative Commons scenario. But since I don't need the money, I wouldn't agree to license the photo unless all the legal angles are covered.
posted by Admiral Haddock at 11:40 AM on January 14

I don't know much about this, but I had a thought: more than one person may have rights in this photograph. Suppose you have rights in the image, and the museum has rights in the subject matter, and someone who wanted to use the photo commercially would need a license from both of you. In that case there would be nothing wrong with you licensing the image, with the understanding that you were only granting the license as against your own rights in the image. If a license agreement required you to recite that you had exclusive rights, you couldn't do that. But if the license agreement said that there might be other rights and that you made no warranty that the photo could be used without any other licenses, that would seemingly be okay.

But, um, I have no expertise in this area. This is speculation.
posted by grobstein at 11:46 AM on January 14

Grobstein, that's my understanding--just as a translator would have a copyright in a particular translation and the author has a copyright in the underlying work. To flip it around, it should be relatively clear that just getting a license from the museum and artist's estate would not entitle the licensee to use my photo without my permission (I say "relatively clear" because we live in an age of Instagram-like rights grabs, and I can't recall if there were rights grabbing language on, say, my admission ticket that asserted the museum owns all rights to photos taken within its walls (though I doubt it)).

But last time I heard, Grobstein, I think you and I share the same non-IP practice. So who knows what the state of the art is here.
posted by Admiral Haddock at 11:56 AM on January 14

Is the artwork you photographed still copyrighted, or is it public domain?
posted by lefty lucky cat at 12:01 PM on January 14

It's a contemporary (though dead) artist, and I don't think the work was released into the commons--so I think copyrighted.
posted by Admiral Haddock at 12:54 PM on January 14

It's possible that the museum already has photos of the works that can be licensed, like from Getty Images or Corbis or Bridgeman.
posted by Ideefixe at 1:26 PM on January 14 [1 favorite]

If you're really strung up for a solid answer, you could contact a photographer's association and see if they can provide you with contract advice or a lawyer referral.
posted by phaedon at 1:36 PM on January 14

What you have is (possibly) a "derivative work", which should help you in figuring out which parts of the law specifically apply.
posted by anaelith at 2:40 PM on January 14

A lot of museums, while becoming more accepting of photography, generally have a "non-commercial use only" clause in their policy. For example, the Met says:

Still photography is permitted for private, noncommercial use only in the Museum's galleries devoted to the permanent collection. Photographs cannot be published, sold, reproduced, transferred, distributed, or otherwise commercially exploited in any manner whatsoever. Photography is not permitted in special exhibitions or areas designated as "No Photography"; works of art on loan from private collections or other institutions may not be photographed. The use of flash is prohibited at all times and in all galleries. Movie and video cameras are prohibited. Tripods are allowed Wednesday through Friday, and only with a permit issued by the Information Desk in the Great Hall.

For press and other special photography, including film and videotape projects, please contact the Communications Department during business hours by phone [phone], ext. 3441) or fax [phone]). See Image Resources for more information about requests regarding photographs of works of art owned by the Museum for any purpose other than private and noncommercial.

The Museum reserves the right, at its sole discretion, to withhold and/or withdraw permission to photograph on its premises or to reproduce photographs of objects in its collection.

You can contact the museum's rights and reproductions person (generally in the collections, marketing, or PR office) and ask. It's likely that they have a contract with whomever represents the artist that mentions permissible photography. Whoever is asking you to license the photograph from you would have to ask the artist's representation for permission to publish the work anyway.
posted by PussKillian at 3:24 PM on January 14