After U.S. copyright law officially recognized architectural copyrights in December, 1990, many photographers wondered how this development would affect their ability to make and sell architectural photos. The answer:
- The law does not apply to buildings created before December 1, 1990 (so architectural photos of such works can be taken and reproduced without permission), and
- Except for buildings that can’t be viewed from a public space, the copyright owner of a post-1990 building (the architect, developer or building owner) can’t prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the building. (17 U.S.C. 120).
So, photographers only need to be concerned when entering private property without permission to take a photo of a post-1990 building. Such photos may result in a claim of copyright infringement.
What about architectural interiors?
Although the law does not distinguish interior architectural designs from exteriors, both are likely covered by the same rules. That is, if an interior is publicly viewable – for example, a glassed-in porch -- you can reproduce it (assuming you’re not violating invasion of privacy laws). As for non publicly viewable interiors, it's going to come down to (1) whether the interiors are sufficiently original to merit copyright protection -- that is, whether the layout of the rooms goes beyond "standard configurations," (2) what elements (unprotected) are "functional elements whose design or placement is dictated by utilitarian concerns," and (3) whether the photographs of the interior reveal enough information to infringe the architectural plans or designs. Simply showing the kitchen, or bedroom, for example is unlikely by itself to constitute an infringement; you'll need to show that the combined effect of the photos is an infringement of several elements of the design. The only other issues that might arise would be contractual (did you agree not to post images?) or privacy (did you invade the owner’s privacy in some way by posting the images?).
What if the building contains copyrightable artwork?
Typically, if the building contains integrated sculptural elements, you can still photograph and reproduce the building along with those elements. However, if the building contains a “separable” work such as mural, or garden sculpture, that is protected under copyright, the reproduction of that work (within your photo) may constitute copyright infringement.
Can the owner use trademark law to prevent pictures?
There's a minor hiccup when it comes to trademark law. Building owners have claimed building appearances as a trademark when used in connection with the sale of goods and services -- think White Castle and the Sears Tower. But in order for a trademark owner to stop you, the following would have to be true: (1) the building would have to have an identifiable, distinctive appearance; (2) the building would have to be publicly associated with certain goods or services; (3) your use would have to be commercial (not editorial); and (4) your use would have to be linked to an offer or endorsement of similar goods or services. For example, you will run into problems if you use a picture of the Transamerica Pyramid in an ad for another company's financial services. Generally, this strategy hasn't always fared so well for trademark owners, and you probably won't need to worry about it. If you are concerned -- for example, you're working for an ad agency or movie company -- obtain a release for your photography.
For more information …
If you’re looking for more information on photography and the law, check out Carolyn Wright’s excellent blog.