Who owns public art?

As economists often note, there's no such thing as a free lunch. Having secured private funds to underwrite its new public park, Chicago now faces a clash of private claims and public interests. The issue? The right to photograph the park's signature artworks.

Several months ago, city security guards evicted a professional photographer from Millennium Park, saying he couldn't take pictures of the sculpture known as "The Bean" because its copyright belonged to the artist. When local journalist Ben Joravsky challenged the photographer's eviction, however, the city denied it was enforcing copyright and said it merely required commercial photographers to secure permits before working in the park.

But the copyright issue reared its head again shortly thereafter when the owners of a gallery received a visit from the park's project director, who referred to the copyright while demanding they stop selling Bean postcards.

Investigations by Mr. Joravsky revealed the city's previous denials had been only technically accurate. Although the city was not actively defending the copyright, it was concerned with protecting its own exclusive copyright-based license to sell Bean photos, the proceeds of which support park upkeep.

The city then announced a suspension of its photo-permit policy.

But the question lingers: Can a city really prevent others from photographing - and profiting from - public art on display in a public park?

Under copyright law it can, explains American University professor Christine Farley. "Just selling the physical work doesn't mean [artists] part with their intellectual property rights."

Anyone wanting to sell copies of a work of art - wherever located - must specifically purchase the right to do so. According to attorney Henry Kleeman, who negotiated with park artists on the city's behalf, Chicago bought a "perpetual paid-up license to reproduce the artwork for commercial purposes." So only the city or its concessionaires may legally sell pictures of the Bean.

The city has no plans to interfere with picture-taking tourists, say Mr. Kleeman and Chicago Law Department spokesman Jennifer Hoyle. They would be protected by the federal Copyright Act's "fair use" exemption.

But even in cases of commercial infringement, enforcing copyright ordinarily involves suing those who sell violating products, not preventing them from making copies.

Prof. Farley doubts the city could secure a preventive injunction, while University of Chicago law professor Geoffrey Stone notes that when a government agency does the enforcing, "Prohibiting [anyone] from being in the park is overbroad. Commercial photographers are allowed to take pictures of things in the park other than what's copyrighted - trees or people - so clearly [enforcement] interferes with First Amendment interests."

Even when acting to enforce property rights, municipalities are subject to Constitutional limits on government action. Chicago's now suspended requirement that commercial photographers secure a permit to shoot in the park may likewise run afoul of the First Amendment.

Though the city's Ms. Hoyle explains the regulation, saying, "We have to make sure everyone has access to the park's amenities, [so] we have reasonable time, place, and manner restrictions [on its use]," Prof. Stone finds this argument unpersuasive.

"There has to be a legitimate purpose served by the permit requirements, such as not having two parades on the street at the same time," he says. "This is a public forum, and taking pictures in it is a part of free speech."

But the divergence between copyright laws and constitutional rights may highlight a broader struggle: the tension between private ownership and public good.

For copyright purposes it makes no difference whether items are on public land or were created for a public client, says Farley.

She suggests public art might be analogous to architecture, which has a copyright exemption based on the question, "'How can you have this private right of exclusion over things so inherently public?"

Farley says in courts today there is increased acknowledgment of copyright, and a narrowing definition of what is "public" - perhaps largely for economic reasons.

The US economy, she explains, now depends more on the creation of ideas than on the manufacture of things, so the trend toward protecting those ideas through copyright is growing - and perhaps has gone too far.

But artists depend on the freedom to use material in the public domain, argues Professor Susan Richey of Franklin Pierce Law Center. "There's no artist who's ever done anything entirely original; it's all built on what came before."

She suggests one way to reconcile the interests of content owners and the public. "If I'm Britney Spears, and I want to re-record a song, I don't have to ask permission, but I do have to pay a fee."

The Copyright Act puts seven different creative products under such a compulsory licensing scheme. But "photographing public art isn't one of them. Maybe it should be," says Professor Richey.

But gallery owner Bob Horsch - who received the warning visit from the city - shrugs off the legal complexities. "We're taxpayers," he says. "We've been representing Chicago [by selling photographs of its landmarks] for 32 years. We've put up with the [park construction] dirt for six years and now we can't take a picture of what's across the street?"

Despite visits from park officials, Mr. Horsch says he will continue to sell pictures of the Bean. "I don't care what they say; it's public domain."