Date: Fri, 7 Apr 2017 13:08:03 +0000

The question of copyright and photographs of public art is complex, which is probably not a surprise.

One issue, of course, is the copyright in the photograph.  The Directory deals with that by simply having photographers grant a license for the Directory when they upload their photos.  The question that remains, then, is copyright in the underlying work that is photographed, and which, of course, is the point of the Directory.

I can think of three situations in which permission of the artist would not be required:

First, if the photograph is of an architectural work, the taking and distribution of such photos is explicated permitted by section 120 of the Copyright Act.  The limit on this section, however, is that it is specifically in reference to the architectural work, and it is doubtful that it would encompass a photo of a mural painted on the side of the architectural work.

Second, there might be cases, at least with older works, where circumstances would lead a court to conclude that the work was published and therefore in the public domain.  Odd as it sounds, this was the conclusion in a case about the giant Picasso sculpture in Chicago's Civic Center Plaza.

Third, there is a fair use argument to be made in favor of the directory.

I wrote about these issues in a blog post in 2013 that might be of interest, since it addresses these specific arguments and explains some of the cases involved.  The post is at http://blogs.library.duke.edu/scholcomm/2013/09/09/public-art-and-fair-use/, and I would call folks attention to the comments as well, since one of them raises a potential fourth justification for photographs of public art.

Kevin L. Smith, J.D.
Dean of Libraries
University of Kansas

-----Original Message-----
From: "Wical, Stephanie Helen" <[log in to unmask]>
Date: Thu, 6 Apr 2017 18:27:57 +0000

Dear Colleagues:

I was wondering if the Denver Urban Art Directory has secured proper copyright permissions.

http://digital.auraria.edu/denverurbanart

Any information about this would be greatly appreciated.

Best regards,

Stephanie

Stephanie H. Wical
Electronic Resources & Acquisitions Librarian Mugar Memorial Library Boston University
771 Commonwealth Avenue
Boston, MA 02215

Phone:  617-358-3967
E-mail:   [log in to unmask]u