El Paso

Why you could be violating copyright law by taking selfies at Los Lagartos

Art & Copyright special report

EL PASO, Texas - With a smart phone, anyone can become an amateur photographer. But do you ever think about the consequences of snapping a selfie with a work of art behind you? 

Let's say you take a picture of the "Los Lagartos" statue at San Jacinto Plaza and put it on a t-shirt, or key chain. You would be violating the copyright law.

The iconic sculpture by Luis Jimenez is the centerpiece of the newly-redesigned San Jacinto Plaza. It pays homage to the live alligators that once called San Jacinto Plaza home.

Recently, an amateur photographer snapped a photo of "Los Lagartos" for an El Paso Community College (EPCC) cover insert to be distributed with the El Paso Times.  

The fiberglass statue by El Paso artist Luis Jimenez was commissioned by the city in 1995, and has been photographed thousands of times since.

The Artists Rights Society (ARS), which currently holds the copyrights to Luis Jimenez's estate and 80,000 other artists, declined the cover use because the request was made close to EPCC's deadline. 

"Los Lagartos" never made the cover for the 33,000 copies.

Marco Milazzo knows first hand about the challeges of taking pictures. "As photographers who own our own copyrights, we want to respect other people's work and err on the side of caution," said Milazzo. 

The ARS protects the "intangible rights". 

Adrienne Fields, Director of Legal Affairs in New York, said copyright laws will be enforced if the artist feels his or her work of art will be highly commercialized. In other words, it will be enforced if the artist feels someone plans to profit from the image in a publication, clothing or perhaps a keychain. 

"It's like when you buy a book," explained Milazzo. "You own the physical object, but you don't own the copyright. You don't feel like buying the book gives you the right to reproduce it and give a copy to all your friends." He added, "that's also applicable to all kinds of art."

Another of Jimenez's works resides at the University of Texas at El Paso. "End of the Trail (With Electric Sunset)" is a statue was dedicated in the lobby of the UTEP library in September 1998.

So how does fair use apply to amateur photographers?

"Fair use applies for criticism, comment, news reporting, teaching and research," said Attorney Melissa Silverstein. "So there's no commercial use. You're not profiting off of it and it's not considered for use."

Silverstein said the use of Jimenez's artwork is a great promotion for the community, saying,  "I think art is wonderful. It adds a lot to our community, especially these famous sculptures."  

But she added she understands the view point of the artists wanting to control their artwork. "They put in a lot of work, so they should have control of how their work is being depicted."

So are you in violation of copyright laws if you take a selfie with a public work of art and share it on social media? 

The ARS said, "there is no special rule regarding works of art displayed in public." It added, "such works are provided with the same protection as works situated withtin a museum of a private collection." 

Luis Jimenez's nine sculptures, including "The Southwest Pieta" which was declared a national treasure by President Bill Clinton, have copyright protection 70 years after his death.

Jimenez was killed in 2006 in Hondo, New Mexico while working on a sculpture. 

A large section of "Blue Mustang" fell on him and severed an artery. 

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