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    American Sculptor Issues Takedown Notice to Wikipedia

    Adam Holland, November 21, 2012

    Abstract: American sculptors Claes Oldenburg and Coosje van Bruggen (now deceased) have issued a DMCA takedown notice to Wikipedia, concerning 59 photographs of examples of their work.

    A fascinating discussion about the extent to which copyright should protect worls on public display has sprung up recently around a DMCA notice sent to Wikipedia-US.
    The notice, which can be found here on Chilling Effects, sent on behalf of American sculptors Claes Oldenburg and Coosje van Bruggen (now deceased) concerning 59 photographs of examples of their work on public display around the world that were previously available as part of the Wikipedia article on those sculptors. Photographs of some examples of Oldenburg’s work are still available on his Wikipedia biography page as of this writing.
    The sculptures in question were located, among other places, at outside installations in Germany, the Netherlands and Spain, as well as in Philadelphia, San Francisco and Minneapolis here in the U.S. Photographs of all of them are still readily available in many locations on the web, as well as at Oldenburg’s website. The right that Oldenburg is claiming has been violated is that to control reproductions of their work, in this case reproductions in the form of photographs.

    Setting aside the discussion of why a sculptor might want to prevent, (or not) people from seeing photographs of his sculpture, in some jurisdictions, including the United Kingdom and notably, given the locations of some of the sculpture at issue, Spain, Germany and the Netherlands, copyright law explicitly recognizes a right to take photographs of artistic works on public display, without first securing the permission of the rights holder. This is typically known as “freedom of panorama”. IPKat has a write-up of this. However, there is no such right under United States law, and as Wikipedia points out, US conflict of laws analysis means that US law applies, even though some of the sculptures are located in countries with freedom of panorama laws.

    Wikipedia clearly would prefer to leave the photos up, but as is so often the case in matters such as these, lacks the resources for a prolonged legal battle, and merely urges its users to advocate for legal reform.

    We here at Chilling Effects bring this to your attention not only because it is a fascinating issue, but also in hopes of getting you to ask yourself “How often is this sort of thing happening? How many works of art have I never seen a photo of because of claims like this? What other aspects of public culture might I be missing because of takedown notices?”

    **Also worth investigating is a very similar US case on this topic involving a trademark, rather than a copyright claim, is Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions. Here, Gentile was a photographer who sold photographs he had taken of the iconic Rock and Roll Museum and Hall of Fame in Cleveland (built with public money) set against a backdrop of sunset over Lake Erie. The Museum sued him, claiming infringement of the trademark in the Museum’s unique appearance. Ultimately a federal appeals court ruled in favor of Gentile, although on grounds some took issue with.


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