Legal Question in Intellectual Property in California

Is it legal to photograph artwork on private property that has been opened up to the public during a special event?

Specifics: Assume there is an artists colony that is usually accessible only to residents, but opens itself to the public for a special event. The event is a gallery exhibition for artists to showcase their work. In this example, a photographer takes a photo of a sculpture. She does not have the artist's permission prior to taking the photo, but there are no signs expressly forbidding photography either. The artist then bids the photographer to send him copies of the photo (he does not request that she delete them).

1. Was it legal for the photographer to take the photo?

2. Would sending copies of the photo to the artist be entrapment as it would be proof that the photographer took pictures, but did not have express ("written") permission?

Asked on 5/06/15, 3:07 pm

1 Answer from Attorneys

Phillip D. Wheeler, Esq. Phillip D. Wheeler, Attorney At Law

It is legal in MOST cases to photograph in public. Were you invited to the event? If so, then you are a guest and can take pictures. HOWEVER, I am only basing my answer on what you have said. Was a stipulation that no photographs be taken? If so, then no, you were not rightful to take the picture.

1. If you took photographs of the photo without permission for profit then you could be held liable

2. As for entrapment, I don't think that is the case here. All the photographer would be doing is proving that they took photos of someone elses photograph.

It really all comes down to whether you are selling or using the photograph for your own gain. That would not be right and could be a violation of the artists intellectual property rights.

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Answered on 5/08/15, 3:56 pm

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