Sculptures situated in public places can easily be photographed, filmed, or drawn without the knowledge of the sculptor, and such two-dimensional reproductions might equally easily be merchandised commercially. What rights, if any, do sculptors have over their publicly sited works? A recent lawsuit by a sculptor of an outdoor artwork illustrates some key issues.
US artist Arturo Di Modica made a 7,000 pound bronze sculpture, Charging Bull, 1989, at his own expense of around $350,000, and installed it without authority outside the New York Stock Exchange in December 1989 as 'a Christmas gift to the people of New York'. The bronze was removed by the authorities who, in response to substantial public calls for its reinstatement, installed it in the terminus of Broadway in Bowling Green Park where it remains today. Often referred to as 'The Wall Street Bull' or 'Bowling Green Bull', it has become one of New York City's most popular tourist photo-opportunities, and the media when reporting financial news also regularly use images of it. Di Modica still owns the bronze, although in 2004 he stated that he would consider offers for its sale - but only on the basis that the work was not taken away from its current site: he, the authorities, and New York public, view it as a permanent feature of Lower Manhattan.
Di Modica also owns copyright in the work. In September 2006, he launched legal proceedings in the federal court for the Southern District of New York (Di Modica v North Fork, 06-CV-7210) against Wal-Mart Stores, North Fork Bancorp and several other companies, for breach of his copyright by selling unauthorised replicas of his work and using it in advertising campaigns. He claims that 'Wal-Mart is knowingly and wilfully selling and marketing direct copies of plaintiffs subject work to the public', that he has 'lost and will continue to lose substantial revenues', and that other defendant companies are 'unfairly profiting by incorporating images of the Charging Bull into advertising campaigns and into the graphics associated with particular television programs', including Art.com, American Vision Gallery, Bluestone Designs, Igor Maloratsky, Photoframesplus.com, Bruce Teleky and SG Martin Securities. Di Modica is seeking court orders preventing future use of his sculpture, financial compensation and his costs.
The artist may well succeed. Under US copyright law only works of architecture - not outdoor sculptures - that are 'ordinarily visible from a public place' can be reproduced in two dimensions without the permission of the copyright owner. In other words, the owner of copyright in a building in the public environment cannot prevent the 'making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations' of their architectural work; though they can prevent the making of three-dimensional reproductions. This is very close to the position under UK copyright law - in the case of architecture - but not in the case of outdoor sculpture.
Under UK copyright law, there is specific statutory provision made for sculptures permanently situated in a public place or to which the public has access. It is one of the clearest exceptions to the basic copyright position (that no-one can reproduce copyright work without the express consent of the copyright owner). Just like works of architecture under UK and US copyright law, outdoor sculptures under UK law can be reproduced two-dimensionally, even be filmed or broadcast/transmitted, without the copyright owner's consent; and such reproductions can also be used commercially without consent.
Consider this example of an outdoor sculpture that a UK artist was recently commissioned to produce and site in the UK. The artist owns the sculpture and is responsible not only for the artistic creation but for all legal liability relating to it. The work is highly visible from nearby public roads and, just like Charging Bull, it has been adopted by the public as a treasured local icon. As a result, many public and private organisations are either already using, or would like to use, images of the sculpture for commercial or promotional projects. In this case, in the UK, all two-dimensional uses of the sculpture do not need the artist's consent, do not therefore breach copyright in the work - because it is permanently situated in a public place where the public can see it (that was the artist's intention) - and can therefore make two-dimensional versions of it. However, the makers of such 2D images are obliged to publish an acknowledgement of the author of the work when they make and issue such reproductions, whether doing so on a commercial or non-commercial basis. Furthermore, the makers of such 2D images must not publish such reproductions that treat the sculpture in a derogatory manner - they cannot add to, alter, amend or delete anything from the image of its original shape and form - so as to damage the integrity and reputation of the sculpture and its author. The right to object to derogatory treatment, and the right to be acknowledged as author, both derive from artists' statutory moral rights brought into UK law by the Copyright, Designs and Patents Act 1988.
What does need the sculptor's express prior consent is the making of any three-dimensional reproduction (not just a replica) of the outdoor sculpture. So if, as appears to be the case in one of Di Modica's claims, there were to be a 30 reproduction without consent, that would be a breach of copyright; a sculptor who is asked for prior consent would be in a strong bargaining position to negotiate commercially beneficial copyright royalty fees, and to exercise strong control over the quality of such reproductions.
In the UK and most other developed states, it is possible to register as a trade mark anything capable of being recorded graphically. This would give a legal right to control the use of any registered graphic image for as long as registration was maintained. But it would require the artist to take photographs - from every conceivable angle - and register each of them, together with a specification of which broad categories of commercial activity the registered images would apply to (and would need to register in each such broad category). This is unlikely to offer any reasonable prospect of legal and effective control: partly because of the number of images and camera angles that would be required, and partly because of the number of broad commercial trade mark categories into which each such image would need to be registered.
It is important that artists and commissioners of public sculptures understand artists' loss of basic control of copyright (but not of their statutory moral rights) when a sculpture is permanently situated in a public place. Although capable of being dismantled and moved from their current locations. The London Eye and The Angel of the North are both effectively permanently sited; their copyright owners have no power to prevent the making and commercial merchandising of postcard and other 2D images of their works. Because, unlike US copyright law, copyright law in the UK regards those iconic outdoor works as having been given to the public by placing them permanently in a public place, and (so the argument goes) it would be unreasonable (and practically impossible) to prevent the public from making 2D reproductions of them.
© Henry Lydiate 2006