D
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.
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.
**********
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.