A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.
Cheryl Adams, J.D. Law, is licensed to practice law in Maryland, U.S.A. She attempts to provide entertainment and basic general information about U.S. law. Enjoy. To learn more about her: Getting To Know Cheryl Adams To see her artwork Fine Art America.
Question: Can buildings be copyrighted? If so, how does that affect photographers or people who want to paint buildings?
Answer:Yes, buildings can be copyrighted, but there are a lot of limitations. Copyrighted buildings can be photographed or painted if they are “ordinarily visible” from a public place.
COPYRIGHT: The Copyright Act allows certain architectural works to be copyrighted.
ARCHITECTURAL WORK DEFINED:
“An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.3
I understand this to mean that creative new building designs or design elements can be copyrighted, either through the architectural drawings of the building, or the actual building itself. If a building element is a “standard feature,” or the kind of architectural detail so commonly used it would be in the public domain, then the detail isn’t copyrightable. There is an “expression” vs. “function” analysis, as well. Artistic expression is protected by Copyright law. By contrast, functional things, new and “useful” inventions, are protected by patent law.
That said, most of the law concerning copyrights on buildings seems to be focused on architects copying each others’ designs, as opposed to photographers or artists painting buildings.
VISIBLE FROM A PUBLIC PLACE:
You can take photographs of, or paint pictures of copyrighted buildings as long as what you are painting is located in, or ordinarily visible from a public place. That means you have to be in a public place, such as a public street corner.
“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.”
WHY THE DATE DECEMBER 1, 1990 IS IMPORTANT:
December 1, 1990 matters to architectural copyright because buildings older than that date are not copyrighted at all. If you are photographing these older buildings, you don’t have to concern youself with whether you happen to be standing in a public place or not – for purposes of copyright law. Note that this date does not matter to trademark law, or other laws that might apply to photography of buildings.
“The following building designs cannot be registered [with the U.S. Copyright Office]:
- Designs that were constructed, or whose plans or drawings were published, before December 1, 1990
- Designs that were unconstructed and created in unpublished plans or drawings on December 1, 1990, and were not constructed on or before December 31, 2002”
STRUCTURES OTHER THAN BUILDINGS:
“Structures other than buildings, such as bridges, cloverleafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats” are also not copyrightable.
Getty Images has a website that discusses issues surrounding photography of famous landmarks. Some of the landmarks discussed are buildings, some are other subject matter. Mainly the restrictions are on “commercial use” of photos of these landmarks. Regardless, Getty Images recommends getting a release when publishing photos of famous landmarks.
I expect that some of the restrictions are based in trademark law, because under certain limited circumstances buildings can be trademarked. Other restrictions might be based on rules for visitors to private venues, or hybrid public/private venues, which might include rules regarding commercial use of photographs taken on premises.
In the United States, in the vast majority of cases, photographing private residences from a public place would be legal. If you are trespassing in order to get the perfect shot, that might be a different matter. That said, as a practical consideration, not a legal consideration, some people feel as if their privacy has been invaded if random strangers are taking pictures of their homes, and they may object. A best practice would be to request permission before photographing private homes.
SOURCES AND FURTHER READING:Copyrighted buildings can be photographed or painted if they are “ordinarily visible” from a public place. Click To Tweet
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