Photos of Buildings and Architecture Under Copyright Law
Complex questions can arise when copyrights stack on other copyrights. For example, a photographer may take a photo of a building that has an architectural copyright. The photographer then likely will have a copyright in their photo. In most cases, they will not have infringed on the architectural copyright in the building. Copyright protections do not extend to any buildings that were built before December 1, 1990, which is when the law providing for architectural copyrights went into effect. Moreover, under Section 120 of the Copyright Act, a photographer is free to take a picture of a building that dates from after 1990 unless it cannot be viewed from a public space. In other words, a photographer can infringe only if they take a photo of a post-1990 building after trespassing onto private property.
Photos of Interiors and Copyrighted Artworks
No specific provision of the Copyright Act covers interiors of buildings or implies a distinction between exteriors and interiors. This means that a photographer likely can take a photo of an interior space that can be viewed by the public. An exception may apply if taking a photo would infringe on the privacy of the occupant, but this is a separate legal question. A photographer also would not be able to take a photo if they had agreed with the owner that they would not take photos. Getting written permission from the owner in advance is generally a wise precaution that requires minimal effort.
A photographer may be able to take a photo of an interior space that is not publicly viewable unless the space contains several copyrightable elements of the design. This means that the space would qualify for copyright protection based on the originality of the design. A finding of infringement is unlikely if the space contains many functional elements, which would not receive copyright protection. Photographs would infringe only if they show the interior space in enough detail to substantially reveal the architect’s plans or designs.
You can photograph any sculptures that are integrated into the design of a building without worrying about infringement. If a sculpture or painting is separate from the structure of a building and covered by copyright, you may not be able to take a photo that contains that artwork. A problem is especially likely to arise when a photographer takes a close-up photo of a separate artwork in a building and sells that photo on its own.
Trademark Rights for Buildings
Sometimes owners of buildings try to claim additional protections under trademark law. Arguing that the appearance of a building is a trademark rarely succeeds unless the building is famously linked to a certain business and used by someone else to promote a competing business in the same industry. The trademark owner would need to show that the building was sufficiently distinctive and popularly associated with a certain product or type of service. They also would need to show that the photographer used the photo in a commercial way that was related to promoting similar products or services. If you are concerned about this possibility, you may want to simply get a release from the building owner before taking the photo.
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