With each column in the series RIGHTS the Arts Union chooses an appropriate image made by one of its member artists that has no relation to the issues in the article. Jet Leopold, Why is vacancy a right? And why do we place it above the right to live?
I have a theory that almost always holds true. When I receive a case on a specific issue, a second similar issue almost always follows within two weeks. Again.
The creator of a meter-high stainless steel sculpture contacted me. Her work, a popular landmark on the promenade of a seaside resort, turned out to be prominently featured on the label of a local specialty beer (with salty aftertaste). Shortly thereafter, I received a message from another artist. One of his works, a portrait of a local celebrity in a crowded city spot, had been included in a popular tear-off calendar of iconic cityscapes without his knowledge.
The common thread here is art in public spaces. A good time to expand on this topic.
As the creator, you have exclusive rights to your work and no one may use it without your permission
For many readers, copyright law will be a familiar concept by now: as the creator, you have the exclusive right to your work and no one may use it without your permission. There is an exception for art in public space, known as the "panoramic exception. This rule makes it possible to depict works of art that are permanently in public space without permission, provided they are displayed in their natural environment. The idea behind this is that works of art (and buildings and bridges) that are part of the streetscape belong to everyone's environment, and should therefore be free to use to a certain extent.
The artist of the work on the boulevard was sitting on the terrace when she suddenly saw her artwork reflected on a beer bottle on the table next to her. Nota bene on that same boulevard. She knew nothing about it, let alone that she received compensation for it.
An exception, called the "panoramic exception," applies to art in public spaces.
The law places limits on the panorama exception. The work must be permanently in a public space, it may not be taken out of context or manipulated, and three-dimensional replicas, such as key chains or snow globes, are not allowed. The beer label complied with the rules. And yet - does the use feel fair?
In practice it falters, especially when commercial parties use a work of art without any compensation. A local beer brand makes money from the appearance of a sculpture conceived and created by an artist. And this one stands there helpless and empty-handed.
It just goes to show how important it is to know your rights
In this case, I sent a demand letter: either stop the sale and pay damages, or make a license agreement. Both parties were open to cooperation, and eventually a deal was reached. Now the artist receives a percentage of the proceeds. A rightful gesture of recognition. So the artist was finally able to toast to "her" beer, but this time with a fair share of the proceeds.
It just goes to show again how important it is to know your rights. Just because everyone can enjoy your work in the public space does not mean that it is reasonable for someone else to make money from it just like that. What this means for the publisher of the tear-off calendar is anyone's guess.
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