The Public Sculpture Exception

You may remember that, in the December 2006 edition we published an article called “Problematic Public Sculpture Provisions” by Daniela Simone and Ryan McConville, former student placements at Arts Law.

In the article we outlined the exception in the Copyright Act 1968 (Cth) that allows drawings, photographs or film to be taken of a sculpture or work of artistic craftsmanship that is permanently on permanent public display, without infringing copyright in the sculpture. A work is on permanent public display if it is permanently in a public place or in premises open to the public.

This current exception to copyright infringement allows commercial uses to be made of the particular reproductions without the permission, or remuneration, of the sculptor. It does not extend to other artistic works, such as murals that may be permanently on public display. A commercial photographer therefore, needs the permission of the copyright owner in a public mural in order to photograph it but can photograph the sculpture located near the mural, without obtaining the copyright owner’s permission.

In the December article, we outlined Arts Law’s proposals for reform of this area of copyright law, namely that the sections dealing with this exception be removed and replaced with a limited fair dealing exception allowing non-commercial reproductions of the public artworks only.

The following is a response to our article that we received from artists, Sue Rodwell and Trevor Rodwell.

Reader’s response

Dear Folks

First of all, I would like to thank Arts Law for its support of artists and Newsletter that keeps us informed of current law issues concerning the arts.

We are writing, however, in response to your article in the December 06 Newsletter entitled Problematic Public Sculptures Provision and the impact of Section 65 of the Copyright Act.

We are artists who work primarily in the area of public art and have had many years' experience in the 'reality' of public art, including having images of our work published. From our perspective, the issues regarding this matter are, unfortunately, not as clear cut as your article seems to suggest.

The statement 'While identifying what is a sculpture for the purposes of the section 65 exception will usually be an easy task …' is not necessarily correct. We have undertaken several commissions where the artwork is built into the architectural fabric of a building and could be, to the untrained eye, mistaken for architectural detail. Because of the commissioning process, where certain conditions are imposed, and building standards that have to be complied with, a piece of public art is not necessarily a separate piece of 'sculptural plonk' with a clearly labelled plaque stating the artist's name. This could lead to unintentional breaches of the Copyright Act should it be changed.

Also, the idea that under your proposed changes an artist will be able to extract a payment for commercial reproduction of their work that is on public display would, in our opinion, be a myth. In reality, only artists with considerable clout and financial resources (and in Australia there are very few of them) could demand payment. In our experience the organisation seeking to publish an artists work would simply not publish if a payment were demanded or they would go to an artist who did not require payment but was happy with the exposure (and there are plenty of these, especially those at the beginning of their careers).

The danger with the changes you suggest is that publishers, especially of journals in which artists clearly want to be seen, will simply shy away from the arts area. The time and expense for them to track down and negotiate terms and payments with artists would probably outweigh any benefits to them. If this were to happen the payments offered would probably be meager so there is not much to get excited about for the average artist trying to make a living in an extremely difficult and competitive market.

Philosophically, we agree with your sentiments regarding the Copyright Act, but time has taught us to be realistic. A major issue is really the acknowledgement of an artist where the work is the major or prominent feature in a reproduction. There are many examples of this, such as advertising, postcards, magazine articles, and the trend seems to be leaning towards a disregard for the accreditation of the work to the artist. (The accreditation of work to a particular artist is, of course, covered under Moral rights legislation.) Most artists in the area of public art rely a lot on their reputation to obtain work and this reputation is built up in many ways over time, including images of work being seen in the media. Anything that compromises this exposure would probably be more detrimental to their careers than the doubtful benefit of a small sum for reproduction rights.

Also, we are amazed that NAVA (National Association for the Visual Arts) would support such reform without canvassing members who work in this area for their opinions. To our knowledge this has not happened.

There are many things that can be improved in the art world and it is good that issues like this are being raised, however, those of us who are trying to earn a living as practising full-time artists sometimes have a more down to earth view of things that should be taken into account.

Cheers

Sue Rodwell and Trevor Rodwell
 

Arts Law’s response

Written by Alida Stanley, Senior Solicitor at Arts Law

Arts Law always welcomes artists’ views on the practical realities of artistic practice; particularly when that practice is not accurately reflected in the operation of the law. In this case, the exemption of two-dimensional reproductions of permanent public sculptures from copyright protection has been debated since the law’s enactment.

Arts Law’s advocacy for the amendment of section 65 of the Copyright Act 1968 (Cth) is motivated by many sculptors’ concerns that sculptures are not accorded the same copyright protections as their two dimensional counterparts – paintings, drawings, prints, photographs, collages, etc.

As discussed in our earlier article, the exception was introduced to protect the public from legal liability when taking “happy snaps” of permanent public sculptures. However, in Arts Law’s view, there is no good reason why the exception should include two dimensional reproductions which are used for commercial purposes. The advent of copyright collecting societies such as Viscopy and the Copyright Agency Limited means that potential licensees of reproductions of permanent public sculptures do not have to track down artists, their agents or estates to secure copyright licenses.

While the reader’s suggest that if such licence fees were payable, they would be so meager as to be irrelevant, the growth in the market for digital reproductions may mean that in the future, such rights would increase in value. Devaluing public sculptures by exempting them from copyright protection for two-dimensional reproductions created for commercial gain creates a perception that sculptor’s rights are worthless. Furthermore, this position is completely at odds with the increasing value of reproductions of two-dimensional works in the digital environment.

As the reader’s accurately point out above, sculptors derive promotional value from the reproduction of their work. In the reader’s view, this value outweighs the loss of revenue sculptors would otherwise receive under a copyright license. However, in order to derive this promotional value, a sculptor must be acknowledged. And as the reader also points out, the moral right of attribution is often infringed. Accordingly, the sculptor of permanent public art loses out on both counts – they cannot exploit their copyright interest in two dimensional reproductions of their work and they are not attributed and lose the opportunity to foster their reputation.

Arts Law advocates for the recognition of artists’ copyright and their moral rights. It views these rights as two sides of the same coin: artists’ rights. Devaluing sculptors’ copyright does nothing to promote the recognition of their moral rights. In fact it may send a message that sculptors’ rights are valueless. This is a long-term view and while it may not accord with current artistic practice, the landscape in rights management is constantly changing, particularly with the rise of the digital age.