WHO OWNS THE LIGHTPAINTING?
As I am not a lawyer, I cannot and must not give legal advice. This article does not constitute legal advice, but only reflects my lay legal understanding of the subject..
COPYRIGHTS IN LIGHTPAINTING
I’ll try to clarify the legal situation by looking at the cover picture. Some of it is contrived, but most of the circumstances were actually like that. It is not as simple as most people imagine. The copyright does not lie with the person who pressed the shutter release. Even though this might not suit many photographers who like to “photograph” someone else’s light painting. The picture was taken in the currently empty department stores’ in Görlitz. First I set up the camera, aligned it and made all the settings. Then I distributed the red lamps for the illumination. When everything was set and the performance was discussed with everyone involved, we started.
Our friend Ebs pressed the shutter release on my instruction. Gunnar gave him the command to uncover the lens and then started to paint the dress on our adorable model Lisa. When he was done, Ebs covered the lens again on Gunnar’s command. I switched on the red lights. Ebs uncovered and closed the lens again on my instruction. In the last step of the performance, Lisa and I stood behind the columns with a torch each, Gunnar instructing us on the correct positions. On Gunnar’s instruction, Ebs uncovered the lens again and then finished the recording.
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WHO IS THE AUTHOR OF THIS LIGHTPAINTING?
Most photographers would probably say out of the blue that the good Ebs is the sole author, because after all he pressed the shutter release. Ebs may be a nice guy, but his contribution to the creation of the work is nil! He merely pressed the shutter release and opened and closed the lens on instruction. A trained monkey could do it, you don’t need to know anything about photography or light painting. This task does not require the good Ebs to have the faintest clue about what we are doing in front of the camera. So that leaves Lisa, Gunnar and me as the ones with the biggest stake in the creative process. Now, one could roll dice or draw matches to determine the creator… right?
The current copyright law also provides for a joint copyright and that is exactly what we are dealing with here. So all parties involved can only decide together whether and in what form the image is published. In the case of commercial use, the profits made would be shared. For this reason, I would not enter this picture in a competition; in the vast majority of cases, the conditions of the competition do not provide for a joint copyright. And I can’t very well saw the great camera that is the main prize into 3 pieces.
I created this picture on my own. My model Uschi has no rights whatsoever, Uschi is a mannequin. The legal situation is clear here; I am the sole author. I alone decide on the use of the artwork. All proceeds go into my pocket…. and then partly into the pocket of the Minister of Finance.
In the vast majority of light painting works, several people will probably be involved. Even in such a case, the copyright may lie solely with the main creator if the other persons involved have only contributed small parts to the success of the overall work of art on instruction or if this has been contractually agreed beforehand. Often, however, several participants will exercise the copyright jointly. And here you should think for a second beforehand about who you are working with. In case of doubt, you should draw up a contract here too.
In practice, we have hardly had any bad experiences so far. All the people we travelled with were friendly and understanding. There have never been any serious disputes about jointly created light painting pictures. But it doesn’t hurt to have the most important legal principles in mind, maybe you will run into a “fellow photographer” who is addicted to profiling. Some colleagues can tell you a thing or two about it.
WHAT OTHER RIGHTS MUST BE OBSERVED?
DOMESTIC AUTHORITY
The Görlitz department stores’ is a private building. The owner or the tenant decides whether, and under what conditions, photographs may be taken there at all. This is basically no different from taking photographs in private flats. The most appropriate way to regulate this is with a property release agreement. In most cases, the owner or tenant will charge a fee, at least for commercial use.
Property rights also extend to public buildings such as railway stations. Without the consent of the owner, in this case Deutsche Bahn , photography on railway premises is prohibited. Usually, the railway, like many other users of buildings, allows photographers to take pictures. Only in the case of commercial use of the pictures can they quickly become quite uncomfortable.
However, the user or owner of a building cannot prohibit photography from the outside. In Germany and most other countries, such photographs are covered by the so-called freedom of panorama. In principle, I can photograph any building from public street land and use the images without restriction. The only exceptions are designated security areas (military, penitentiary, Federal Printing Office, Stasi, BKA, КДС and the like).
RIGHT TO ONE’S OWN IMAGE
You may not publish the picture without the consent of the person depicted. Everyone decides for themselves whether and in what form their picture is published. Only public figures are exempt from this. You should agree with your model, preferably in writing in a model release contract, in which form the pictures will be used.
For some time now, it has been forbidden in Germany to photograph people in helpless situations in public spaces. Anyone who photographs accident victims, drunks or homeless people is liable to prosecution. Since 2015, it has also been a criminal offence to distribute defamatory photos of other people.
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PHOTOGRAPHING OTHER PEOPLE’S ART
In this picture, the mural of the artist Sokar Uno takes up quite a large area in our Light Painting picture. So we asked Sokar Uno if we could publish the picture and name him as the author of the newly staged picture in every publication. You can do without this if the foreign artwork only takes up a small part of the picture (no more than one third of the picture surface). However, for reasons of decency, one should also mention the artist’s colleague. After all, that doesn’t hurt.
The excuse “I don’t know who painted the picture” does not count here. After all, the street artist cannot be held responsible for the photographer’s lack of education. In most cases, this can be clarified by a brief search on the internet.
In the case of a legal dispute about our picture, however, the outcome would be anything but predictable. After all, we didn’t simply photograph the mural. I don’t know of any judgements on similar disputes, and they probably don’t exist.
Anyone who photographs someone else’s light painting performance is also photographing someone else’s art. Certainly, the photographer is the author of the photo, but he is not the author of the light painting, i.e. the (main) motif. For this reason, it is not possible for the photographer to publish this picture without the consent of the author of the light painting. Without the light painting, the picture would only be black. So the greater part of the creative process lies clearly with the light painter. And this is precisely the most important question in determining copyright.
There are always nice contemporaries who ignore this and publish the photo of someone else’s light painting without consent and naming the author or even enter it in competitions. And the really tough ones then shit all over the picture with their ugly logo. At the latest when they win a prize with someone else’s picture, they will probably get a letter from the light painter’s lawyer. After all, I can’t submit a photo of the Mona Lisa to a competition with impunity and claim to be the sole author.
Regardless of whether you consider yourself the greatest light painter or a beginner, you should be aware of your rights to the artwork. Whether the painting is good or lousy has no bearing on copyright and other legal and monetary aspects. After all, art is not in the eye of the beholder. Art lies in the soul of the artist!
In this sense, I wish you good light at all times and only nice like-minded people for your light painting nights.
Sven
Sven Gerard, Jahrgang 1969, geboren und aufgewachsen in Berlin. Er fotografiert seit frühester Jugend mit großer Leidenschaft. Neben dem fotografischen Erkunden zahlreicher beeindruckender verlassener Orte, widmet er sich seit mittlerweile 10 Jahren intensiv dem Lightpainting. Sein umfangreiches Wissen teilt er auf seinem Blog „Lichtkunstfoto.de“, weiteren Publikationen und in seinen Workshops. Darüber hinaus organisiert er Veranstaltungen zum Thema Lightpainting, wie „Light Up Berlin“. Gerard lebt gemeinsam mit seiner Lebensgefährtin in Berlin und hat einen erwachsenen Sohn.
Sven Gerard was born in 1969 and grew up in Berlin. He has been a passionate photographer since his early youth. In addition to photographically exploring numerous impressive abandoned places, he has been intensively involved in light painting for 10 years now. He shares his extensive knowledge on his blog ‘Lichtkunstfoto.de’, other publications and in his workshops. He also organises events on the subject of light painting, such as ‘Light Up Berlin’. Gerard lives in Berlin with his partner and has a grown-up son.
