Public Sculpture

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 3D 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

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.