Let’s say I wanted to produce a book with photography highlighting architecture from my town. These are buildings from around the turn of the century through the 1940s and 50s. I would include captions or perhaps short blurbs on the history of each building. There are also painted advertisements on the sides of some buildings, I would like to photograph these if possible as well.
My question is what legal barriers, if any, will I run into in a project such as this? Do I need to obtain permission of the building owner or anything like that?
Photography of that which is in the public view is not considered copyrightable. Imagine if every set of parents wanting to take a picture of their graduating kid in front of the high school had to secure permission from the school’s architects, for example!
The actual products of the architect, the blueprints, are considered his professional work, and permission from him or his heirs, or the person or firm for whom he did the work, must be obtained. I’m not sure what the specific laws governing this are, but that was the advice of counsel when we were preparing material that included plans done by architects and engineers. It doesn’t sound like your proposal includes reproductions of building plans or elevations, but in case you thought to do so, I included that fact.
It’s a matter of courtesy to advise the building owners – and if you are vanity publishing, as in producing a local-history work, it can sometimes serve as a source of contributions. But it’s not legally mandated that you do so. (I can say this with assurance; we prepared a series of “blue form” write-ups of historic structures to the Secretary of the Interior’s Standards for Historic Structures documentation, which included significant photography, and the only time any building owner was notified was when we had to go onto the posted property of one building’s owner to photograph particular facades of another building, and that was merely securing right of entry to the land in order to ensure against any trespass concerns.)
Not trying to pick a fight, Poly, but this statement, as written, is not correct. That is, if I take a picture of a building, I can copyright my photo.
It’s clear that what you meant to say is that architects cannot claim that photos of their buildings violate their copyright.
Thanks for catching and clarifying that – although it appears that belt-and-suspenders legal protection has won out over what was the case when I was working on this stuff; see postcards’s posts.
I’m not sure if I buy the whole “needing a release form” thing…just because one exists on a website doesn’t necessarily mean one’s required. Has anyone seen any relevant laws on this (wouldn’t it be under copyright law)?
Well, if you were to use a photo of a well-known building (say, the Empire State, or for a better example, that basket-shaped building, I forget the name of) in an advertisment, without the knowledge or permission of the owner, you could be sued.
The actual products of the architect, the blueprints, are considered his professional work, and permission from him or his heirs, or the person or firm for whom he did the work, must be obtained. I’m not sure what the specific laws governing this are, but that was the advice of counsel when we were preparing material that included plans done by architects and engineers. It doesn’t sound like your proposal includes reproductions of building plans or elevations, but in case you thought to do so, I included that fact.
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Most plans that I review are specifically copyrighted by the firm that prepared them.
Plans and blueprints of a building are definitely copyrightable, but taking a picture of the completed building is not the same as copying the plans.
Unless postcards can come up with something better than release forms, whose existence, as Garfield rightly says, does not mean that one is legally required to obtain permission, I seriously doubt that copyright law can apply in this case. You’re not copying the plans, and you’re not making another copy of the building itself. You’re creating an image, which is a new, if possibly derivative, work.
postcards is right that someone might sue over use of an image, but people can sue for any reason. It doesn’t mean they have the law on their side.
IANAL, but it seems to me that the most likely legitimate cause for a suit over an image of a building would be trademark infringement. But since most buildings aren’t themselves trademarked, such a case would probably require that the photo depict a sign somewhere on the building with a trademarked name or logo.
Of course, another way of approaching this issue, that would preclude any such problems (and possibly save you time and money), would be to approach the owners and/or designers of the buildings you’re interested in, and ask if they have official pictures you could use in your book. They might very well have professionally made pictures that are better than you could take yourself (no disrespect intended), probably from when the building was brand new. Just an idea.
So whatever other laws may apply (like trademark), it would seem that you are explicitly protected from a copyright claim in the case of any building more than 14 years old.
Well, don’t be lulled into a false sense of security. Before going too far along, it would probably be wise to consult with a real lawyer. And even if it isn’t legally required, having permission is better than not having it. Those release forms postcards found weren’t drawn up for no reason at all.
Your publisher will have the last word as to what you need in this regard, and could very well insist on releases, just to cover his ass.
I think you will absolutely have to get permission and pay “royalties” of a sort. I was talking to a professional photographer in Seattle at a bar one night, and our conversation was exactly about this. He does photography for books, weddings, etc. He was saying that anytime you take a picture of a building that you don’t own and that you intend to then sell you are supposed to get permission and usually pay a percentage of your profits. For example, he cannot take wedding pictures of a couple with the Space Needle in the background, because since he is profiting on those pictures, he has to get permission and pay the owners of the Space Needle.
He said think of it along the lines of if a photographer came and took a picture of your house while standing in the street (not on your property), and then wound up selling thousands of copies of that for whatever reason. You would be pretty ticked off if you didn’t get a portion of the profits, and according to this photographer you would be able to sue for damages.
The Space Needle is one thing; my house is another. The Space Needle may or may not be protected as a trademark or copyrighted like that tree in California that you’re no longer allowed to take pictures of - my house has no such protection, since you can see it from a public area and it is not a human being from whom you would need to obtain a model release or prove newsworthiness.
Thus speaketh every college photography teacher I or Gunslinger have ever heard from.
The law you cited above, amended in 1990, merely extends the copyright protection to copies OF THE BUILDING ITSELF. Previously, you could duplicate a building design, although not the plans of the building. So if you liked the Empire State Building, you could build your own copy. Can’t do that anymore with buildings created after 1990.
I’ve read at several places on the internet, that Congress specifically allows photography of public architecture.
“Congress inserted two limitations on the exclusive rights of owners of copyrights in architectural works. The “public place” limitation permits the unauthorized publication of pictures or other pictorial representations of buildings located in or visible from a public place. The “building owners” limitation permits a building owner to alter or destroy the building without the copyright owner’s consent. These limitations acknowledge the need to protect authors of architectural works while recognizing architecture as a public art form and real estate investment as an important component of the economy. The 1990 Act also expressly permits the enforcement of state and local zoning, building, landmark and historic preservation codes which might otherwise impinge on a copyright owner’s exclusive rights in architectural works.”
So you could snap away until the cows came home and no one in their right mind would sue you as long as you were in a public place when you took the photos. You are also allowed to take photos of public building interiors.
Here’s the definitive permission in the federal law itself:
TITLE 17 > CHAPTER 1 >
§ 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.
I think this is about as clear as it can get. How can anyone possibly misinterpret this to mean you can’t take pictures?