Q. I like to paint scenes of ordinary homes in neighborhoods. I’m careful to view the home from a public spot; I strive to avoid being intrusive in any way; and I’ll politely explain my hobby if asked, even carrying examples of my work to show that my intent is purely artistic. Still, one homeowner declared that I could not paint an image of the site unless given permission by the owner and demanded that I “move along,” although I was on a public sidewalk across the street. Could you clarify the artist’s rights in this situation? And what about later selling these works?
A. Landscapes and cityscapes are common themes for visual artists. Fortunately, landscape artists have greater flexibility than their colleagues who create portraits because model releases are unnecessary. The copyright law applies to original works of authorship that are put into some tangible means of expression. This means that things in nature, such as trees, flowers, water features and the like are not protected by copyright. Functional items are not subject to copyright protection either. Thus, objects like machines, benches and tables are generally not copyrightable. As noted in the answer to the previous question, if an artist standing on a public street decides to paint, photograph or sculpt a nearby building, there are no copyright issues, since this is expressly permitted by statute, though there may be trade dress issues in some limited situations.
Unfortunately, the artist who sets up a tripod, easel or workstation for painting may be blocking the public street or sidewalk, becoming a public nuisance. It is unlawful to obstruct public thoroughfares, such as streets, roads and paths. So it’s best to ask permission first and then set up your workstation so as to permit members of the public to have clear access around you while you work.
Note: Copyright laws are subject to change. This article was originally published in the July/August 2007 issue of The Artist’s Magazine and reflects the laws in effect at the time the article was written.
Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.