Protection of sculptures in public spaces

We recently received a very interesting question through our Helpline regarding the protection of sculptures, and what happens when these sculptures are placed in public spaces and someone takes a photo of it, to then proceed to sell the image online.

Sculptures, like any other work of art, are protected by copyright as long as the work is original.

In the EU, and more generally in all countries that signed the Berne Convention (there are currently 178 contracting parties to this treaty – so most countries worldwide), copyright is a right that arises automatically, upon the creation of an original creative work. This means that as soon as you create an artistic work, it is automatically protected by copyright (as long as it is original): you do not have to file any application, to register any right or to pay any fee in order for copyright to arise and to be enforceable.

Copyright arises upon the creation of original creative works and lasts for 70 years following the death of the author.

As the owner of a copyright, the author will be granted automatically exclusive economic and moral rights over its creation. These are considered exclusive because it means that the author is the only one who can decide who, when or how he or a third party could make use of these exclusive faculties. Moral rights usually include the right to be identified as the author, the right to preserve the integrity of this work... Economic right includes:

• right of reproduction;
• right of distribution;
• right of communication to the public;
• right to make derivative works;
• ...

The right of reproduction is the one at stake here when we are talking about photographs. Indeed, photographs are considered as a reproduction of the sculpture in a different format. So, if anyone takes a photograph, in principle, they would be committing a copyright infringement. However, there are certain exceptions:

• If the sculpture is permanently situated in a public space or building, it is not an infringement of copyright to reproduce it in photographic form. While this might not apply to a temporary exhibition in a coffee shop, if you then sell the sculpture to the city of Sofia and they place it permanently in a Parc, you no longer have the exclusive right of reproduction.
• even if your work is not permanently situated in the public, then some of the exceptions to copyright established by the Member State could potentially apply in some cases (reproduction for educational purposes, for pastiche or criticism, etc.).

In the case at issue, the sculpture was permanently situated in a public space. Hence, photographs of this sculpture, even if sold for economic purposes, will not be considered copyright infringement. In addition, at quick glance, all the photos were giving due credit to the author as the artist behind the sculpture.

As you can see, copyright is not an absolute right and the legislator is always trying to strike a balance between the rights granted to the authors and the rights of citizens.