Copyrighting the landscape

[Rusalka]

According to U.S. Copyright law:

120. Scope of exclusive rights in architectural works
     (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.

What happens when you take a picture of a building that is not ordinarily visible from a “public place”? I find this clause rather confusing. The law doesn’t define public place either; and what happens when if place is “public” one day and private the next, or vice versa?

Logically speaking, I would think that either something is copyright protected or it isn’t - it should have nothing to do with its location.

I’m bringing this up because I’ve seen people argue that this part of the law means that the image of any building not seen from a public place is copyright protected. But does that conclusion necessarily follow from the way the law is written? Why didn’t the lawmakers write: “if it can’t be seen from the public way, the image of a building is copyright protected” if that was their intention?

[Rusalka]

I’m disappointed my question seems to be such a dud.

[Exapno_Mapcase]

It’s just too specific. You’d need an expert in intellectual property law to get to the heart of it.

[Aangelica]

That particular copyright clause is attempting to strike a balance between protecting work that meets the technical specifications of “copyrightable” works and not being totally stupid about it.

Architectural work meets the statutory requirements of work that may be protected by copyright. However, the point of architectural work is to produce a building - which is not even marginally copyrightable.

Architectural work is sort of a weird area for copyright - the plans themselves are quite clearly eligible for protection under copyright, but the plans themselves are not the finished product, so to speak. The finished product (in marked contrast to most other works eligible for copyright protection) is a large, physical object that is in no way entitled to copyright protection - and in fact, has a goodly number of public policy reasons not to be so protected. If architectural copyright were allowed to exted to pictoral representations of the finished product, anytime anyone wanted to display a pictoral representation of a building, they’d have to get the permission of the architect. Think how ridiculous that would be for any number of situations - like tourists taking their picture in front of buildings, newscasters reporting on breaking news, guide books, etc.

Hence, that particular provision asks people seeking to protect architectural works to make a choice - they can preserve their copyright (by either not constructing the building or by constructing the building in a location where it’s not open to the public view) or they can construct the building in a location where it’s open to the public view and forfeit the portions of the copyright protection that relate to pictoral representations of the work.

Please note that, while the statute asks authors of architectural work to give up one of the rights associated with the copyright, it does not ask them to forfeit them all. The so-called “copyright” is actually an associated bundle of rights relating to reproduction of work - each of which can be independently licensed by the author. An author of an architectural work still enjoys the remaining rights in the bundle - he or she is only required to make a choice regarding the extent to which they want to enjoy that particular right.

It’s not as arbitrary as it may seem - there are other branches of law that make a clear distinction between “public” and “private” spaces and what is permissible in each. For example (still in the intellectual properties arena), if you snap a photo of me in a public location, I have no rights of control over that photo. However, photos of me in a private location, I do have certain rights over. Including the right to prohibit publication thereof. (Unless I’m a public figure, in which case my rights are decreased - however, I, personally, am not a public figure - which is why I used myself as an example).

If you still have questions, feel free to ask, although I should warn you that more in depth discussion is going to have to wait for my health to improve somewhat. The meds they gave me for pneumonia are definitely having an adverse affect on my legal reasoning ability!

[Rusalka]

Aangelica, thanks for dragging yourself out of bed to answer my question. I hope you feel better soon.

Here are some follow up questions for anyone with the desire to answer: What is the definition of a “public place”? It’s not defined in this federal copyright law.

So if the law says “you can’t prevent someone from publishing a photo of a building taken from a public place” does that automatically mean the converse is true, that you can prevent someone if it’s in a non-public place? If a prohibition isn’t stated directly, can it be assumed in the law?

What if a location is public one day and private the next? I’m sure this is possible; i.e. properties change hands. So saying that the builders have a choice to make the building not visible isn’t really a good argument, not to mention that an architect may not have final control over site selection. Also, you can take an aerial photograph of buildings, isn’t the air a public place?

I’m just talking about the right of taking a picture of a building here, not other copyrights.

[Saint_Cad]

@Rusalka

So if the law says “you can’t prevent someone from publishing a photo of a building taken from a public place” does that automatically mean the converse is true, that you can prevent someone if it’s in a non-public place? If a prohibition isn’t stated directly, can it be assumed in the law?

That’s the inverse - not the converse.
The conditional is IF a building is in a public place THEN a photographer cannot be prevented from publishing a photo of said building. The converse would be IF a photographer cannot be prevented from publishing a photo of a certain building THEN the building is in a public place which may be untrue (e.g. the copyright has expired). Since a converse and inverse of the same conditional have the same validity, the answer to your question is, “No.”

[VunderBob]

You can prevent photography of a building from a non-public place. It’s called tresspass.

I suspect that what the OP statement is trying to do is claim that the fruit of any photographic endeavor made while tresspassing are legally forfeit to the owner of the property. IANAL, but I also suspect that to be specious. The works of a photographer are his, period.

[Aangelica]

@VunderBob

You can prevent photography of a building from a non-public place. It’s called tresspass.

I suspect that what the OP statement is trying to do is claim that the fruit of any photographic endeavor made while tresspassing are legally forfeit to the owner of the property. IANAL, but I also suspect that to be specious. The works of a photographer are his, period.

Both true statements.

If a building is not in a public place (a term that is not defined in the Copyright Act, but which the courts would almost certainly look to other legal sources to define - because that’s generally what courts do when there’s no language in the statute itself), then anyone photographing it would be, by definition, trespassing. If you take a picture while trespassing, the picture itself (and the copyright thereon) would belong to the photographer. However, there is a competing copyright interest - that of the architect of a building in a non-public location. The terms of the Copyright Act make it clear that in that specific instance, the rights of the architecht supercede the rights of the photographer and the architect may prohibit public display of any such photographs. Essentially, the Copyright Act has prioritized the potential rights in that situation and declared the rights of the architect who has chosen not to complete their work in a public forum to be of more weight than the rights of the photographer (not surprisingly - the photographer was already behaving unlawfully).

As to determining whether or not the building was in a public space (or photographable from a public space), that’s going to wind up being a question of fact for the jury (or the judge if you have a bench trial). That’s precisely the sort of issue that gets sorted out at a trial - so, in other words, each side would present his or her case for the building being either in or not in a public space and the trier of fact would make a determination as to which is more credible.

If a building used to be in public and that condition has since changed, presumably photos taken while it was public are the exempted while photos taken after privitization are not exempted from the provision. This is not a heavily litigiated area of intellectual property law, but that seems to be the pattern in other, analagous areas. I believe the ruling would ultimately be that privitization (or publication, depending on which way the property status change went) would be treated as a change in the licensing agreement. Granted, in this case, the licensing agreement provision in question is implied (or rather, explicitly spelled out in the Copyright Act that under certain circumstances an architect’s rights are altered based on the forum in which their completed work is constructed).

[Acsenray]

Aangelica has done yeoman’s work responding to the questions, so I won’t try to go into detail.

@Rusalka

Here are some follow up questions for anyone with the desire to answer: What is the definition of a “public place”? It’s not defined in this federal copyright law.

The concept of public space is extensively discussed in American law and it’s not really the province of copyright law to define it – that’s why the definition isn’t in the Copyright Act. Commonly, the question of public space
comes up in free speech cases. Generally speaking, if you’re in a public space, you can’t be stopped from expressing yourself. However, if you’re in a private space (a shopping mall, for example), the owners can stop you from speaking out in ways that annoy them.

So if the law says “you can’t prevent someone from publishing a photo of a building taken from a public place” does that automatically mean the converse is true, that you can prevent someone if it’s in a non-public place?

The purpose of this provision isn’t to give copyright protections in the case of buildings seen only from non-public spaces. As Aangelica noted, the purpose is to allow people taking pictures in public to be free from worrying about copyrights on architectural works on the one hand and on the other hand not creating a license for people to break into private property in order to take pictures.

[/quote]
If a prohibition isn’t stated directly, can it be assumed in the law?
[/quote]

No, not necessarily.

What if a location is public one day and private the next? I’m sure this is possible; i.e. properties change hands.

The relevant location is the one where the photographer is standing. If he’s not trespassing, then he can take a picture. And the issue of property ownership changing hands doesn’t really come up very often. This provision isn’t designed to be a trap for people taking pictures.

So saying that the builders have a choice to make the building not visible isn’t really a good argument, not to mention that an architect may not have final control over site selection.

The purpose is not really to give architects the option of having extra rights. You’re letting an architect know that he or she is creating something that most likely is going to be in the view of the public so they can’t prevent people from taking pictures of it. If they want to design buildings that will be built only inside locked, private barns, then they can make sure that nobody’s going to be taking any pictures, but that’s not usually the purpose of architectural design, really.

Also, you can take an aerial photograph of buildings, isn’t the air a public place?

Yes. If you’re in the air and you can see it, you can take a picture, unless there’s some particular law preventing it (such as for security reasons), and in that case, you will probably not be allowed to fly through that part of the airspace.

[Rusalka]

Thanks for your replies. One point you’ve missed: you don’t have to be trespassing to be on private property taking pictures. You could be the guest of the property owner, or be a neighbor on private property, or be a tenant, or be a part of a thousand other similar scenarios that are much more likely than trespass. Say you’re at a country club, known for its fabulous architecture. You take an artistic picture of your friend with the fabulous buildings in the background. There is no policy barring photography. You later paint a portrait from this picture with the buildings in the background and make lots of prints and become famous.

Is it correct to assume the law still doesn’t automatically protect copyright on the image of buildings you take from such a location, and that this clause doesn’t really address whether or not it’s permissible under the copyright law to take pictures of architecture on private property? In other words, the law specifically says you can’t take action against the photographer if the picture is taken from a public place, but it doesn’t really say anything about other scenarios. Is this a correct interpretation?

Also, what if you’re at a zoo, or some other not for profit outdoor museum, not necessarily owned by the government? Is that considered a public or private place?

[Acsenray]

@Rusalka

One point you’ve missed: you don’t have to be trespassing to be on private property taking pictures. You could be the guest of the property owner, or be a neighbor on private property, or be a tenant, or be a part of a thousand other similar scenarios that are much more likely than trespass.

You’re focusing too much on the distinction between private and public property. That’s not the important distinction. “Public place” does not necessarily mean “not privately owned property.” The issue is really – can the architectural work be seen in public? If you are standing on private property, presumably the owner of the property could ban the use of cameras if he or she wished, but that’s not really a copyright issue.

In my view, what the Copyright Act is telling the creator of the architectural work is that “if a building is built based on your design and that building can be seen from somewhere other than from the building itself, then people can take pictures that include images of the building.”

[Cervaise]

@Aangelica

If you take a picture while trespassing, the picture itself (and the copyright thereon) would belong to the photographer.

In other areas of copyright protection (music, writing, painting, etc), “work for hire” typically causes the copyright to pass from the creator to the entity which retained the creative person for the purposes of generating the work. If I’m a copywriter at an ad agency, the ad agency owns the copyright for anything I generate for it (unless the agency has been hired by a client for a specific campaign, in which case the client gets the copyright for the material). Does this extend to architecture as well? If I hire an architect to design my house, and I build that house in a deep valley in the middle of a thousand-acre plot, such that it can’t be seen except from on my property, does “work for hire” mean I own the copyright for visual representations of the house?

[Acsenray]

@Cervaise

In other areas of copyright protection (music, writing, painting, etc), “work for hire” typically causes the copyright to pass from the creator to the entity which retained the creative person for the purposes of generating the work. If I’m a copywriter at an ad agency, the ad agency owns the copyright for anything I generate for it (unless the agency has been hired by a client for a specific campaign, in which case the client gets the copyright for the material). Does this extend to architecture as well? If I hire an architect to design my house, and I build that house in a deep valley in the middle of a thousand-acre plot, such that it can’t be seen except from on my property, does “work for hire” mean I own the copyright for visual representations of the house?

I believe that for it to be a work made for hire, you either have to be an ongoing employee (and I don’t think an architect hired for one project would count) or the ownership of the copyright has to be explicitly referenced by the contract.

[Gfactor]

@Cervaise

In other areas of copyright protection (music, writing, painting, etc), “work for hire” typically causes the copyright to pass from the creator to the entity which retained the creative person for the purposes of generating the work.

No it doesn’t. Work for hire, despite it’s freewheeling title is limited to employer-employee relationships and a few special cases.

Circular 9 Redirect | U.S. Copyright Office

A “work made for hire” is—
(1) a work prepared by an employeewithin the scope of his or her employment ; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, *if * the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106–113, nor the deletion of the words added by that amendment—
(A) shall be considered or otherwise given any legal significance, or
(B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination,
by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made For Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106–113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.

(Emphasis added). 17 U.S. Code § 101 - Definitions | U.S. Code | US Law | LII / Legal Information Institute

[Cervaise]

@Gfactor

No it doesn’t.

All righty then.

[Rusalka]

Yeah, this is an issue I didn’t even bring up but it is relevant to my question. An architect usually owns copyright to his building design. Taken to the extreme for people who argue you can’t photograph buildings on private property because the image in the landscape is protected by copyright, (which argument I think has been established is NOT true ) then the owner of the building wouldn’t even be able to photograph it and profit from the photos, without permission from the architect.

It’s not that ridiculous a scenario to consider. Imagine someone like Thomas Kinkade, but painting private houses in bucolic settings with permission from the owners. Kinkade made millions from selling prints of landscapes. I’m sure there would be a lot of architects who would want to claim a piece of that if they felt they had the right.

[Aangelica]

@Rusalka

Yeah, this is an issue I didn’t even bring up but it is relevant to my question. An architect usually owns copyright to his building design. Taken to the extreme for people who argue you can’t photograph buildings on private property because the image in the landscape is protected by copyright, (which argument I think has been established is NOT true ) then the owner of the building wouldn’t even be able to photograph it and profit from the photos, without permission from the architect.

It’s not that ridiculous a scenario to consider. Imagine someone like Thomas Kinkade, but painting private houses in bucolic settings with permission from the owners. Kinkade made millions from selling prints of landscapes. I’m sure there would be a lot of architects who would want to claim a piece of that if they felt they had the right.

I think you’re misunderstanding - the concept of “image in the landscape” is sort of a red herring. This would be largely because if a building is part of the “landscape”, it generally means it’s available for public viewing. The Empire State Building (for example) is part of the NYC landscape because it’s available for public view - as are many other architectural wonders. This is not to say roving picture-takers can make themselves free of the entire structure - this is more to say that there are a goodly many public locations from which it is possible to photograph the building. The White House is also in this class - even though actual access to the building is very, very controlled.

I think you might be misunderstanding the concept of public and private in this context. Even in the case of a privately owned structure to which access is not permitted as a matter of course, if it is possible for a photo of that structure taken from any public space (like a roadway, sidewalk, treetop in a nearby park, from the air, from a hilltop nearby that’s on public land, etc.), then the building is considered in the public space for purposes of things like photography.

It is actually a correct (if limited) statement to state that in a situation where a building has been constructed out of the public view, the architect and not the owner would have copyright in photographs of the building, unless other arrangements were made. One of the primary reasons this is not a heavily litigated area of copyright law (other than the fact that constructing a building that’s not photographable from a public space is a major, major hassle) is because the owner of the building where there is going to be no public access such that would allow casual photography typically purchases the architect’s rights as part of their contractual arrangement. In the very few cases I’ve read about in this area, it was always a building owner seeking control of photographs under this provision - because they had purchased the rights from the architect as part of their contractual arrangement (or because the building design was a work-for-hire as rigidly specified and designated by the Copyright Act).

The scenario you’re suggesting with architects wanting to claim some of the action on Thomas Kinkaid’s work is one of the reasons the statute carves out this exception in the rights of architects for pictoral representations of buildings they designed - among other reasons I mentioned before.

[Rusalka]

Aangelica and others, thanks for your patience.

Ok, now I’m really confused. You say “this exception” is carved out for architects, but I don’t see any exception carved out, I just see permission given for photography of architecture in the public space. There’s that word "if ":
If “the building in which the work is embodied is located in or ordinarily visible from a public place”, then you can’t prevent it. There’s no “else”. “Else what?” Else could be anything, right? Else could be “well you could try suing over copyright but there’s no guarantee” or it could be “you can prevent people from taking and publishing photos in all cases” or it could be “If you’re a martian, you are allowed to photograph on private property, everyone else can’t”, or it could be “If you’re the owner you can photograph your own building and sell the photos without permission, but anyone else can’t” or any number of other scenarios.

There’s no other clause in this copyright law giving an architect the right to deny people the right to make a 2D picture of the building as part of a private landscape. I always thought the law has to spell out rights, you can’t assume them. It’s spelled out that people can’t copy architecture plans, and that people can’t copy the execution of those plans (the building), but the image of the building… well the only thing the law says is that if you’re the architecture copyright holder you can’t sue someone if they make a picture from the public way. Doesn’t that leave a big hole?

Several people, including you, have stated here: that the purpose of the clause is to make it clear that people have permission to photograph from the public way and doesn’t say much else. The above post now seems to contradict that logic. I am ONLY talking about permissions in the context of copyright law and architecture, not trespassing, not contractual agreements, right of publicity, trademark, or any other reason you might not be allowed to photograph something or someone in a non-public space. You skirted the issue by stating that building owners always get permission in their contract with the architect, but let’s assume they don’t.

Perhaps the reason I am confused is that you are looking at this in a practical sense, but I want to understand the theoretical underpinnings.

Here’s the big question: Can the law “imply” some rule by stating only cases where that rule doesn’t apply without stating the rule directly?

Let me give you another example, on another board someone said that you can’t photograph animals in certain zoos because structures visible in the background may be copyrighted, and that most zoos are not public places.

so two questions arose:

1. Is a zoo a public place if it’s not owned by the government?
2. If a zoo is not a public place, does it mean you can’t photograph any animal if there’s a designed structure in the background.?

Assume the zoo has not explicitely forbidden photography ahead of time.
So this is a practical question but I really wanted to know the answer to the “big question” I asked above.

[Gfactor]

@Rusalka

There’s no other clause in this copyright law giving an architect the right to deny people the right to make a 2D picture of the building as part of a private landscape.

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

17 U.S. Code § 102 - Subject matter of copyright: In general

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to **reproduce the copyrighted work in copies ** or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 U.S. Code § 106 - Exclusive rights in copyrighted works | U.S. Code | US Law | LII / Legal Information Institute

(Emphases added.)

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

17 U.S. Code § 101 - Definitions

Now look at section 120:

(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.

Better?

[Rusalka]

Gfactor, I hadn’t even considered that a picture of a landscape with a building in the background could be a “derivative” work of architecture.

Would you say:

If the landscape is utterly private, and
if the architect’s creation (building) cannot be seen from any public way…
You are a neighbor of the owner of said building, and you have this wonderful view of the landscape including the building from your patio. Without any permission from anyone, you paint a painting with your dog in the foreground, and the landscape and the building in the background while standing in your patio. You sell the painting for a fortune.

The architect can sue you for infringement and reasonably expect to win?

I can’t find any cases out there on this topic. I would like to think a 2d picture of a landscape is significantly different enough from the design plans of a building or the building itself, to be “transformative” instead of derivative.

Jeff Koons was recently sued for appropriating part of a commercial photograph as an element of his painting. The photographer who sued him lost, because Koons’ work was considered “transformative” enough, and there was no damage to the photographer. (Koons vs. Blanch)

re “fair use”:
"More important than the educational or nonprofit nature of the use is whether the use is “transformative” in nature. A use is transformative if it builds upon, criticizes, comments on, parodies or otherwise adds something new to the original work. Put another way, the question is whether the new use, in the words of the Supreme Court, merely “supercedes the objects of the original, or instead adds something new, with a further purpose or different character.”
http://fairuse.stanford.edu/stanford_notices/etchemendy-2003-03-copyright-reminder.html

I just realized something. If the airspace is a “public place” then no building is protected, depending on your definition of “ordinarily visible”…especially in this age of easily accessible aerial photography. The law doesn’t say the photo has to be taken from a public place.