Wednesday, August 3, 2022

Can I Publish Interior Photo of Museum Without Permission?

Interior Entrance to the Department of Interior
Dear Rich: Do we need any kind of release to use a photo of an interior entrance in a new and very famous museum for use in a print-only format. The topic of our publication is the museum. The authors found the image on the web. I can’t find any caption with credit / © language . . . on the web.
Getting permission from the photographer would eliminate any risk resulting from your publication. But if you can't get permission,  you may have a reasonable fair use argument.
Fair use. Reproducing the image without the copyright owner's permission is an infringement unless you can claim fair use. If we consider the four fair use factors, the first factor, the purpose and character of the use, weighs in favor of fair use because your book is for purposes such as criticism, comment, reporting, and teaching, all reasons provided in the notes to the fair use statute. As to the second factor, the nature of the copyrighted work, courts generally consider photographs as creative works, unless, as might be the case with your photo, the photo is more documentary in nature and does not “showcase the original artistic expression of the photographer.” (See DeFontbrune v. Wofsy in which museum catalog photos of Picasso artworks were reproduced). Assuming the photograph is basically a documentation of the entrance, this second factor may weigh in your favor as well. The third factor, the amount and substantiality of the work used, weighs in favor of the photographer because we imagine you will be using the complete photograph, unaltered. (See Golden v. Michael Grecco Prods in which promotional photos of Xena the Warrior Princess were used in a blog post.) The fourth factor, the effect of the use upon the potential market, is difficult to call because we're not clear as to the source of the photo, whether the photographer has exploited the image, and whether the photo and the museum book compete in any manner.
If you go with the photo ... You can strengthen your fair use claim by reducing the size of the image (thumbnail is best) and you can demonstrate your good faith (which may help lower potential damages) by documenting attempts to find the copyright owner. In regards to the latter, have you tried Google's image search to locate other sightings of the photo?
Architectural copyright. If the museum is new (built after 1990), copyright law protects the building's design. As Circular 41 (Copyright Claims in Architectural Works) states, examples of works that satisfy this architectural copyright requirement "include houses, office buildings, churches, and museums (emphasis added). Keep in mind, that the architectural copyright extends to the overall form of the museum's building, the exteriors, and the arrangement and composition of permanent structures that divide the interior into separate rooms and spaces. However, the museum's architectural copyright does not include standard features such as windows, doors, or similar building elements, standard configurations of spaces, functional features, or interior design features, such as the selection and placement of furniture, lighting, paint, or similar items. Although we haven't seen the museum's interior entrance, it is possible that by itself, it may not qualify for copyright, or that your reproduction will be excused as fair use.

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