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Photography of copyrighted buildings

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Doug Kerr

Guest
We often hear of photographers, taking a photograph of a building (perhaps from public property), who are accosted by representatives of the building management and told that they may not take photographs of the building since the building is copyrighted (and thus presumably the taking of a photograph of it would constitute copyright infringement, contrary to law).

I thought it would be might be of interest to recite the interpretation of such matters, under US copyright law, held by this office. Note that I am neither qualified nor permitted by law to give legal advice, and this report of my interpretation is not intended as such.

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The short answer is that, in most cases of interest, taking, distributing, or displaying a photograph of a copyrighted building does not constitute infringement of the copyright.

1. Changes in the US copyright law effective in 1990 include works of architecture (buildings) in the works protected by copyright. This applies to all buildings completed after December 1, 1990 that otherwise qualify under basic copyright doctrine. Basically, that requires that the building design contain unique elements. (A building that merely repeats a design used for many years, before the onset of copyright protection for buildings, might well not be eligible for copyright protection.)

2. As with other copyrighted works, it is not necessary for the architect (the "author" of the work) nor another party who may acquire the copyright (typically the building owner, who may constitute a "corporate" author) to "register" the work to put the copyright into effect.

3. The direct impact of this is to prohibit the copying of a copyrighted building without the permission of the copyright holder. That is, one cannot construct another building "like" a copyrighted one without permission.

4. The taking of a photograph of a building is not copying it. If it were, the result would not be a photographic image but rather another building.

5. However, the taking of a photograph of a building might well be construed as "creating a derivative work", something that is also prohibited under copyright law if done without permission. (A parallel would be the publication of a motion picture based on a copyrighted stage play.)

6. Nevertheless, US copyright law [at 17 U.S.C. 120 (a)] specifically provides that "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."

7. Note that the predicate for this exemption is that the building be located in or ordinarily visible from a public place, It is not the predicate for exemption that the photograph be taken from a public place. Thus, the taking of a photograph of the Ajax building from a window of the Zephyr building does not constitute infringement of the copyright (if any) on the Ajax building (assuming the Ajax building is ordinarily visible from any public space). In fact, taking a photograph of the Ajax building from the forecourt of the Ajax building (from a point on "Ajax" property) does not constitute infringement of the copyright on the Ajax building. There may of course be other bases on which the management of the Ajax building may prohibit one from so doing, just as they may be able to to prohibit other acts conducted on their property. But this would not be a matter under copyright law.

8. Note that this doctrine is essentially parallelled by the copyright laws of many, but not all, other countries.

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Recall again that this is just a recitation of my interpretation of these matters. I am neither qualified nor permitted by law to give legal advice, and this report of my interpretation is not intended as such.
 

Nill Toulme

New member
Very interesting Doug, thanks. What about the related but different question of the need for "model releases" for buildings, as for example when an image of a building is going to be used for a commercial purpose by someone other than the building owner?

Nill
~~
www.toulme.net
 
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Doug Kerr

Guest
Hi, Nill,

Nill Toulme said:
Very interesting Doug, thanks. What about the related but different question of the need for "model releases" for buildings, as for example when an image of a building is going to be used for a commercial purpose by someone other than the building owner?

I havn't thought much about that. But I doubt if there is any such notion. The need for that for people comes from a different legal concept (although I must admit I don't know exactly what that is)!

Best regards,

Doug
 
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Doug Kerr

Guest
Hi, Nill,

Well, from a quick look around the 'Net, there is such a notion of releases for the commercial use of photos of someone's property, but I'm not sure about the exact underlying legal doctrine.

In any case, it has nothing to do with copyright issues.

Best regards,

Doug
 

Sid Jervis

pro member
Property releases are used in the UK, I am not to sure how common they are, but I know they are required in many cases for commercial work.

$0.02
 
in germany this is similar but different in one detail, which often might be important. here the shot has to be taken from a place which is accessible by the public, so taking it from the second floor of another building or from a rented crane might not be allowed without permission of the owner or the architect or both.
 
Doug Kerr said:
Well, from a quick look around the 'Net, there is such a notion of releases for the commercial use of photos of someone's property, but I'm not sure about the exact underlying legal doctrine.

Me neither, but IANAL. The only restriction I know of in my country is for certain government (military) sites. Everything else is subject to regular Copyright restrictions.

In any case, it has nothing to do with copyright issues.

Indeed, Copyright restrictions have to do with intellectual property laws, Bern conventions in my (Netherlands) case. The architect originally has them, unless they are transferred to someone else. This makes it markedly different from US Copyright law, which strictly excludes buildings from copyright restrictions (save 'Patriot' act paranoia).

Bart
 
In fact, there has been an interesting change, about 2 years ago, in the Dutch Copyright Act for this type of 'original works'.

Here is the (unofficial !) English translation of the relevant article 18, one of the articles that deals with Copyright limitations:
Article 18
Reproduction or publication of pictures made in order to be put on permanent display in public places, of a work such as is normally found in such places, will not be regarded as an infringement of the copyright of the author in a work as specified in Article 10, paragraph 1, at point 6o, or a work relating to architecture as specified in Article 10, paragraph 1, at point 8o. Where incorporation into a compilation work is involved, no more than a few works by the same author may be incorporated.

That translation is a bit awkward (i.e. the "in order to be put" is a simply wrong translation) IMHO, and the original text in Dutch obviously is worded more meticuously, so I've marked the most relevant parts in bold.
It all boils down to, the work of architecture must be on permanent public display, and may only be shown as it is encountered. Which is quite a relaxation compared to the old wording of that article.

For those interested, an unofficial translation of the full Copyright Act can be found here, and a consolidated version of the Dutch original here.

As the article is worded, it is not allowed to 'Photoshop' the image into something else, without the permission of the Copyright holder, because it is not "as normally encountered/found". As always, the Court has the the final judgement.

Bart
 
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Jason Anderson

New member
Very germaine to this discussion is an article I read recently on new legislation weaving its way through both the House and Senate that would curb the "fair use" clause due to specific language that has been left out. If I can remember the magazine name, I'll share the article title and the general synopsis of the article itself.
 
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