Some photographers may wonder whether photographs of copyrighted works can themselves be copyrighted. Architects have their own copyrights in their building drawings, for example. But if you take a photograph of a building, do you have an independent copyright on the photo? The short answer is, yes!
Architectural works are protected by U.S. copyright law, specifically by 17 U.S. Code § 102(8). In fact, copyright law was officially changed in December 1990 in order to include these architectural copyrights. What does this mean for photographers who want the ability to make and sell architectural photos?
Therefore, photographers need to be concerned only 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.
Although the law does not distinguish interior architectural designs from exteriors, both are likely covered by the same provisions. That is, if an interior is publicly viewable, such as a glassed-in porch, you can reproduce it through photograph (assuming you’re not violating invasion of privacy laws).
As for non-publicly viewable interiors, the determining factors will be:
Simply showing the kitchen or bedroom, for example, is unlikely by itself to constitute an infringement; the owner or architect would 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, for example if you agreed not to post images, or privacy if you did not have permission from the owner. In this situation, you should generally seek written permission from the owner of the property to ensure that there is no confusion regarding your intentions.
Typically, if a 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 photograph) may constitute copyright infringement. This is particularly true if you take a "close up" of that element and sell it separately.
Trademark law presents additional issues for photographers to consider. Building owners have claimed building appearances as a trademark when used in connection with the sale of goods and services.
But in order for a trademark owner to stop you from reproducing a photograph of a building, the following would have to be true:
For example, you might run into problems if you used a picture of the famous Transamerica Pyramid in San Francisco for an ad for another company's financial services. Overall, however, using a trademark law claim has not worked well for the trademark owners, and you probably do not need to worry about it. If concerned, however, the safest course is to obtain a release for your photography.
To learn more about photography and the law, check out Carolyn Wright’s blog, which covers issues related to the law of photography. You can also learn more about copyright law for content creators from Nolo's Copyright Handbook.