This past weekend, my wife and I were fortunate enough to take in the sights and sounds of NYC. Included on our stops was the world famous Rockefeller Center Christmas tree. The tree was lit on December 3. Despite the cold, the rain, the wind, and the protests over the recent Eric Garner case, we were able to brave the elements and get several nice snapshots, including some selfies.
Because I can’t really just enjoy the moment without slipping my brain into intellectual property mode, the taking of this picture raised a question for me? Is my taking of this photo and my use of it in this post an act of copyright infringement? What about the sculpture below the tree?
The answer might surprise you. A lot of people generally think that anything displayed in public can be photographed and used with impunity. But that’s not really the case. As a general matter, sculptural works in the U.S. are copyright protected, and along with that protection generally comes derivative works protection which would include the right to control photographs of the sculptural work.
Here, I’m probably safe because this is obviously non-commercial use intended to facilitate a discussion on the parameters of copyright law. I’m pretty comfortable that it constitutes fair use and I’m also comfortable that even if it did not, the fine folks at Rockefeller would let this one slide. However, that probably wouldn’t be the case if I started running this photo through a printing press and selling reasonably priced postcards on my favorite New York City street corner.
So, a word of advice to any “photogs” out there who may be in the business of selling their photographs. Make sure to consider copyrights of any potentially protected works that are captured in your photographs. That should help you stay off the “naughty” list this holiday season.