What are copyright laws concerning portrayal of decorative outdoor sculptures?

[Hedgehog3]

What is the name of your state? NC

I intend to create a mixed-media work that portrays a local garden area. This garden area includes many decorative garden structures of unknown origin, such as stone floral mandalas, filigree elements, mosaic designs, animal sculptures, and a gazebo. I am wondering about any sort of copyright on the garden structure designs that I should consider before creating this portrayal. The work will not be a straight-forward representation of the garden, but rather an expressive reinvention of the space. I intend to sell the work at a gallery as well as offer limited edition prints of the work. Is it possible that an individual who designed one of the decorative pieces in the garden could come forward and state I have stolen their design for my own profit? Thank you!

 

[quincy]

What is the name of your state? NC

I intend to create a mixed-media work that portrays a local garden area. This garden area includes many decorative garden structures of unknown origin, such as stone floral mandalas, filigree elements, mosaic designs, animal sculptures, and a gazebo. I am wondering about any sort of copyright on the garden structure designs that I should consider before creating this portrayal. The work will not be a straight-forward representation of the garden, but rather an expressive reinvention of the space. I intend to sell the work at a gallery as well as offer limited edition prints of the work. Is it possible that an individual who designed one of the decorative pieces in the garden could come forward and state I have stolen their design for my own profit? Thank you!

It is possible that some of the garden structures and designs are copyright protected. How you use these protectable elements will determine whether your mixed media work infringes on the rights of artists who created the originals.

You can search for infringement cases involving the "appropriation artist" Jeff Koons (although I will try to get back to this thread to post links for you later).

Jeff Koons takes the copyrighted works of others and uses these works to create his own works of art - and he has been sued frequently as a result. He has won some of the infringement suits filed against him and he has lost several others.

The key to using another's copyrighted work without infringement is to acquire permission from the copyright holder first.

Creating "derivative" works (works based on preexisting material) is an exclusive right held by the copyright owner. Transformative works, on the other hand, takes original rights-protected material and adds new expression or meaning to it. It is often a fine legal line between a derivative work and a transformative work - and it will be this fine line that is analyzed in court should the rights holder take exception to the unauthorized use of his material and pursue a lawsuit.

 

[quincy]

Links to a few of the many Jeff Koons' lawsuits follow.

Koons lost another copyright infringement lawsuit in France this year for appropriating a French clothing advertisement created by Franck Davidovici to use as the basis for his sculpture "Fait d'Hiver." This is the second infringement lawsuit lost by Koons in France.

Rogers v. Koons: https://h2o.law.harvard.edu/cases/5190
United Features Syndicate, Inc. v. Koons:
https://law.justia.com/cases/federal/district-courts/FSupp/817/370/1459412/
Blanch v. Koons:
https://cyber.harvard.edu/people/tfisher/IP/2006 Blanch Abridged.pdf

All of the Koons cases can be educational to read, as they cover the factors courts weigh when determining if the use of another's copyrighted work in creating a new work is a derivative of the original (and therefore an infringement on the original artist's rights) or transforms the original with new expression (and therefore a fair use of a copyrighted work).

You would be smart to have the specifics of your proposed work personally reviewed by an IP attorney in your area.

 

[Hedgehog3]

Thank you Quincy! I will take a look as these cases.

 

[quincy]

You're welcome, Hedgehog3. Thanks for the thanks.

I wish you good luck with your artwork.