Q&A – Is a Manipulated Photo of a Sculpture Fair Use?

Q. Artist Jim Hodges has an installation on top of The Contemporary, Jones Center, art museum in Austin, TX, entitled “With Liberty And Justice For All.” Could I take a picture of the artwork, manipulate it with software, render it in a different physical environment and use it for commercial purposes? Would my new work be protected by copyright? A. As explained by my November 17, 2009, blog, courts have disagreed as to whether photographs of copyrighted works are derivative works.  This also was the issue when sculptor, Jack Mackie, sued photographer, Mike Hipple, because Hipple “used the image of [a part of the sculpture] in a piece of graphic art . . . [and] obliterated Mackie’s copyright notice, but used other parts of the rest of the [sculpture].”  Hipple had offered the image for licensing through stock agencies. Just before trial,  Hipple and Mackie settled their claims. The U.S. Court of Federal Claims…

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