Photographing Buildings: Does Open to Public = Public Domain?

Yes, this image in the public domain.

This past week there was quite a stir when the Daily Mail published a story discussing an obscure provision in the EU copyright law that, on its face, appears to require any person taking a picture of the Eiffel Tower at night must get approval from some outfit called the Societe d’Exploitation de la Tour Eiffel. Yes, you read that previous sentence properly: it included a reference to both copyright and a building. And yes, the rules only restrict taking pictures of the tower at night and sharing them; daytime pictures are A-okay. At this point, you might be a little confused about several things. Quite frankly, I am too, I mean after all, being in the public and freely accessible to anyone, isn’t it unfair to deprive someone of the ability to photograph something? Aren’t these buildings designed for the express purpose of giving others inspiration and allowing them to incorporate the building into their own artwork? Ay, my head is spinning already, as it usually does when copyright I dissect copyright issues. Despite being a seemingly simple idea and legal concept, copyright laws have evolved (or devolved, depending on the context for discussion) into a complex web of statutes and case law protecting not only standard faire, but more advanced and nuanced “artwork as well”.

With that narrative in place, let’s dive in here and break it down.

First, buildings can be copyrighted. More specifically, architectural works are protected. They are protected even though they are “useful”, being made primarily for the housing of people and things. Architectural works and architectural plans are both protected as copyrightable works. When you think about it, this makes sense because architecture, as a form of practical artwork, can be just as much of an original creation as can a painting or sculpture. If an architect spent years designing a critically-acclaimed building only to have elements of it copied by another drafter and re-created on the cheap, it seems wrong that the copier should get off scott-free, especially since architectural plans and drawings are so easy to copy. 

---

But there has to be some limits to the scope of this right in architectural works. These types of works are unique from other types of works such as books and movies. First, a book or movie is not publicly available and free for everyone to enjoy. You have to buy the book or check it out from the library in order to experience it. Books are not lying around in the street, un-obscured from any type of access like architectural works are. Second, books (in their copied form) do much more harm to the author than copying the end-product of an architectural work (the actual building itself). A book can be easily copied and reproduced in many different forms (hard-copy, digital, audio, etc). About the only thing you can do with an architectural work is take a picture of it, draw it, or capture it on video, none of which copies the actual design itself, at least in a form that detracts from the architect’s original work on the plans and the physical design of the building. Which leads me to my next point of this shakedown of the copyrightability of architecture.

Second, pictures of architectural works do not infringe on the copyright in the architectural work. When Congress drafted the statute granting copyright protection to architectural works, it recognized the value of protecting the public’s right to enjoy the architectural works and increase the overall cultural impact of the buildings. After all, as the House report found,

Architecture is a public art form and is enjoyed as such. Millions of people visit our cities every year and take back home photographs, posters, and other pictorial representations of prominent works of architecture as a memory of their trip. Additionally, numerous scholarly books on architecture are based on the ability to use photographs of architectural works.

I take this restriction to be a testament to (what should be) a limited copyright protection in a work. I say “should be” because the phrase “protection for limited periods of time” may have been abrogated just a bit by Congress’ continuing extension of the copyright term when lobbyists come knocking at their door, but I digress. The point is, architectural works are unique in that they can be enjoyed publicly without harming the original author. Indeed, you could even say that allowing people to enjoy a building by taking pictures of it and spreading word about its majesty and stunning art features may help promote the very architect that designed it much like Frank Lloyd Wright or William Van Alen (architect of one of my favorite buildings, the Chrysler Building). American certainly recognizes architecture as one potential “intellectual export” that it can provide to visitors and tourists. But why is Europe being so stingy about its architectural works?

Yes, this picture is also in the public domain.

Well, because, third, copyright laws vary by country. Yes we live in a global economy and yes copyright intuitively seems like something that should be constant across borders, what with the borderless nature of content. But at their base, copyrights are still rights with definable boundaries. And some countries like to extend these boundaries beyond their natural scope, even if it means removing something from the public eye that quite literally is open to the public. Europe has apparently taken the latter track, combining the concept of public domain with the right to prevent copying of architectural works. But its not the type of copying of the actual architectural plans, like the U.S. prohibits.

With Societe d’Exploitation de la Tour Eiffel’s reclaiming of the Eiffel Tower from the public domain (how in the heck could they do that?), people can now be fined for taking pictures of the Eiffel Tower, but only at night. Apparently the light displays that dot the tower are a work of authorship, too. In America we would say the light display is an audio/visual work of sorts, but I don’t think adding a slew of lights to a building automatically creates a copyright in the display, one that prevents anyone from taking pictures of it. Besides, isn’t some of the romance of the Eiffel Tower at night the light display itself? How many potential cultural “bonus points” can a picture of the Eiffel Tower at night contribute to society? My guess is quite a bit if the right photographer captures the right shot at just the right time.

Maybe someone at Societe d’Exploitation de la Tour Eiffel came to this same realization when they clarified the whole situation:

The « Société d’Exploitation de la Tour Eiffel » (The Eiffel Tower operating company) deplores the unfunded rumor shared in the media concerning the monument’s lighting copyright policy.

If it’s true that the illumination of the Eiffel Tower is protected by copyright, only professional or commercial use of these images is subject to prior request from the Société d’Exploitation de la tour Eiffel and may induce a fee.

However, personal use of these images, shared by individuals on social media such as facebook, is entirely rights-free and doesn’t need any prior request from the Sociéte exploitation de la tour Eiffel.

On the contrary, the SETE is glad to see the happiness of its visitors sharing their day and night souvenir of the monument. ERic SPITZ CEO of the eiffel Tower

So, at least for personal use, its okay to take family pictures, the proverbial kissing underneath the tower photo, and other opportunistic shots of the Eiffel Tower, whether during the day or at night. Just don’t take pictures of the tower and turn around to commercialize them, without Societe d’Exploitation de la Tour Eiffel’s permission. They don’t want your artistically brilliant picture to become a commercial success, at least without getting a claim to a piece of the pie. Or perhaps people might think that your picture was authorized by Societe d’Exploitation de la Tour Eiffel’s and, in that sense, the Eiffel Tower would be serving as a trademark of sorts.

But can buildings really become trademarks? I’ll take that one up next time.