PHOTOGRAPHER LOSES CASE AGAINST MET MUSEUM WHO USED HIS PHOTO WITHOUT PERMISSION

Joined
Jun 26, 2010
Messages
4,700
Location
Redwood City, CA
Interesting. I'd guess the court has close ties to the Museum. I plan on contacting my local museums to see where they stand on this issue. If they back the Met, I'll stop backing them. Free-ware seems erasing copyright.
 
Joined
Jul 8, 2019
Messages
1,042
Location
SF Bay Area, California, USA
Now that is sad.
Were he "asked" for permission to use the photo in their exhibit, he probably would have granted it.
 
Joined
Jan 13, 2006
Messages
5,220
Location
Columbia, Maryland
Real Name
Walter Rowe
Does a museum that collects an entrance fee to see their exhibits get to claim fair use? Perhaps so if they are considered a non-profit, educational institution? What are the ramifications for other artists who’s work will now be appropriated without consultation or authorization? Does this have any impact on the author’s future rights or revenues relative to the art in question? Copyright pundits on both sides of this will banter this around for a while. It will be an interesting story to continue to follow.

The "Fair Use" provision of US Copyright laws has multiple tests. Does an instance of "Fair Use" have to satisfy just one of the tests, or all of the tests? The four factors judges consider are:
  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.
https://fairuse.stanford.edu/overview/fair-use/four-factors/
 
Joined
Jan 2, 2012
Messages
7,505
Location
British Columbia
I would have expected more from an institution like the Met, but it's a sign of the times.
_________________________________

On February 7, 2017, The Metropolitan Museum of Art implemented a new policy known as Open Access, which makes images of artworks it believes to be in the public domain widely and freely available for unrestricted use, and at no cost, in accordance with the Creative Commons Zero (CC0) designation and the Terms and Conditions of this website.

https://www.diyphotography.net/met-museum-digitizes-entire-collection-releases-375000-images-free/
 
Joined
Sep 13, 2007
Messages
21,220
Location
Northern VA suburb of Washington, DC
Does an instance of "Fair Use" have to satisfy just one of the tests, or all of the tests?

"All four factors...are considered by a court to determine whether a use is fair.

The 'purpose and character of the use' is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a 'transformative use') instead of simply copied and/or placed into another work.

A court is more likely to find fair use when the 'nature' of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works.

An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book. While such a 'de minimis' use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.

When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer – such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field."

https://blog.kenkaminesky.com/photography-copyright-and-the-law/

That link provides access to considerably more detail about fair use.
 
Last edited:

NCV

Joined
Jan 31, 2019
Messages
606
Location
Italy
Real Name
Nigel
I wonder how things would evolve If I started selling pictures or published a book containing pictures of artefacts displayed at the Met.

Here in Italy I cannot sell pictures that I take of public monuments without paying a fee.
 
Joined
Jan 13, 2006
Messages
5,220
Location
Columbia, Maryland
Real Name
Walter Rowe
Someone I know testifies as an expert witness in copyright cases. They were not called in this case. I asked their opinion of this. This person didn't speak favorably regarding the attorney for the photographer, and indicated the case could have been won with a better attorney.
 
Joined
Dec 3, 2012
Messages
7,215
Location
Sandpoint, Idaho
Someone I know testifies as an expert witness in copyright cases. They were not called in this case. I asked their opinion of this. This person didn't speak favorably regarding the attorney for the photographer, and indicated the case could have been won with a better attorney.
i asked my attorney friend about it and got essentially the same answer, he said the Met hired better attorneys.
 
Joined
Oct 28, 2017
Messages
13
In higher education in online learning, we have for years struggled with IP. Professors have (possibly) abused IP for years in class, where only their in-person students see it. But overall, it's for education, so generally considered in fair use anyway. HOWEVER when things moved on-line, it became more of an issue. Overall, the industry settled on -- if the learning object (e.g. a "borrowed" graphic for example or a newspaper article) was available online but BEHIND a password protected online course access, that was OK, but not if put into a public course where anyone could enroll (e.g. a MOOC).

In fact, MIT's OpenCourseWare for years employed people to scrub prof's class content even going so far as recreating graphics and other "borrowed" content which had been presented in a limited access classroom, into an original representation of the data for public consumption to avoid IP lawsuits.

This seems the same to me - if they used the photo in a museum classroom for limited enrollment, I could agree. If it's in a public exhibit, where people are not enrolled in a class, then I would think it looks a lot like a MOOC or MIT's Open Courseware, and is outside of fair use for education.

If this judgement becomes precedent, then a lot of educational organizations maybe could start using charts, photos, pictures of Met art (for example!), newspaper and online articles in their open course ware without having to pay royalties or get permission. It strikes me that this ruling is greatly expanding what fair use has been understood to be. Is there another court to appeal this ruling to?
 
Joined
Mar 4, 2005
Messages
15,557
Location
Los Angeles, USA
So can we go to the MET, take photos of the exhibits and present the work to the public for "educational" purposes? I'll charge admission and say all proceeds go to the educational college fund for my kids! :D
 
Joined
Nov 7, 2017
Messages
76
So can we go to the MET, take photos of the exhibits and present the work to the public for "educational" purposes? I'll charge admission and say all proceeds go to the educational college fund for my kids! :D

Hell, minus the context here and without giving it much thought, I would've assumed I could go to a museum, take photos of art, or whatever, and sell them, assuming I was allowed to take said photos. But I admittedly don't know much about the topic, having never sold a photo or considered doing so.

I really think our copyright and IP laws need a serious overhaul given the digital age we find ourselves in. But good luck with that. :)
 
Joined
Mar 4, 2005
Messages
15,557
Location
Los Angeles, USA
Hell, minus the context here and without giving it much thought, I would've assumed I could go to a museum, take photos of art, or whatever, and sell them, assuming I was allowed to take said photos. But I admittedly don't know much about the topic, having never sold a photo or considered doing so.

I really think our copyright and IP laws need a serious overhaul given the digital age we find ourselves in. But good luck with that. :)

On a more serious note, the copyright holder (the photographer) should have final say. It should be a simple cease and desist. It makes me wonder what were the underlying technicalities of this case and why the MET Museum would be adamant about going to court? There has to be more to this story. If it was only a part of an exhibit, I don't see why they couldn't just remove that one image?
 
Joined
Sep 13, 2007
Messages
21,220
Location
Northern VA suburb of Washington, DC
I really think our copyright and IP laws need a serious overhaul

America established a small claims court relating to copyright infringement of photos without which it was not economically practical to take legal action for the vast majority of situations. I believe that court was established as recently as last year (though such a court was created in Europe a long time ago).
 
Last edited:

Latest threads

Links on this page may be to our affiliates. Sales through affiliate links may benefit this site.
Nikon Cafe is a fan site and not associated with Nikon Corporation.
Forum post reactions by Twemoji: https://github.com/twitter/twemoji
Forum GIFs powered by GIPHY: https://giphy.com/
Copyright © Amin Forums, LLC
Top Bottom