I read the thread on Rangefinder Forum - one thing I think everyone is missing about copyright is that the sculptor's copyright begins and ends at the object itself. The sculptor has a right to the sculpture itself - if I were to start making 1/100th scale models of "the bean" without paying a licensing fee, then Mr. Kapoor would have the right to pursue me in court. Copyright for a work of art covers the commercial use of an image/object itself, and the intellectual content thereof. If I take a photograph that majorly and substantively uses and/or copies the elements of someone else's image in such a way that it is reasonable to confuse the one work for the other, then I have violated their copyright. Taking a photograph of an object like the bean is a new work of art, regardless of commercial or personal intent, because in taking my photograph of the bean, I have chosen a particular way to interpret the sculpture - the time of day, the angle of the light, the presence or lack thereof of people in and around it, etc. I would think that photographing the bean would in some ways be analogous to making a parody of an existing artwork - Marcel Duchamp's LHOOQ, for example, or Andy Warhol's Campbells Soup Can.
When I've been in Millenium Park, there have always been many cameras pointed at The Bean, but I think the photographers were mostly photographing themselves reflected in The Bean's surface, or perhaps their relatives and acquaintances standing in front of it.
In September of 1968 I was eight years old and had just moved to Chicago. My next door neighbor was Declan Haun (then, of Life magazine). In his basement, his son Erich (my age) was delighted to show me the helmet Declan wore to cover the convention. It was a motorcycle helmet, completely covered with black photographer's tape and with a "LIFE" logo cut from a magazine cover centered above the brow. I didn't really understand the need for the helmet at first. Not long after that comes my earlies memory of television news and the courtroom drawings of Bobby Seal bound and gagged.
Originally Posted by Mark Feldstein