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."

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