Who owns public art?

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."

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