The illustrious IP Kat blog ("we put the meow in IP"), mewsed today about liability and exceptions for copyrighted works displayed in public. See ipkat.com. My feline friends recalled a 2002 decision by the German Bundesgerichtshof involving alleged artist Christo, who successfully stopped postcards from being sold depicting his wrapping of the Reichstag. See here. many many years ago, in my beloved Northern California, Christo unveiled one of his early works, miles of white fence stretching from the Pacific Ocean to a highway north of Novato in Marin County. I drove by it every day going to work. It looked like a very long roll of toilet paper. A few years ago, he similarly treated Central Park in NYC. One person's commerce is another's art, perhaps, and I have no doubt that the result in the U.S. would be the same as it was in Germany, for we have no general exception from infringement for works of art displayed in public, unlike Section 62 of the UK Act:
Section 62.—(1) This section applies to— (a) buildings, and (b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public. (2) The copyright in such a work is not infringed by— (a) making a graphic work representing it, (b) making a photograph or film of it, or (c) broadcasting or including in a cable programme service a visual image of it. (3) Nor is the copyright infringed by the issue to the public of copies, or the broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of this section, not an infringement of the copyright.
Its not clear to me that this provision would have helped Christo, since I am not sure his promiscuous use of Cottonnelle qualifies as a sculptural work or a model of one. In the U.S. we have fair use which might excuse particular uses of works like Christo's or other works of art displayed publicly, and in the case of architectural works, we have Section 120(a):
(a) Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.