Copyright 101

[Ronnoco]

I think I should deal with copyright one issue at a time.

The copyright act indicates specifically that it relates to published works, music, film, photos, audio, manuscripts, poetry etc.

Contrary to what some tourist sites and apparently some cities would have you believe, copyright certainly does NOT apply to:

buildings, towers, bridges, statues or art in a permanent public place, light displays, fireworks, historical buildings, reconstructions, or anything else of that nature.

As a photographer, you have the legal right to take photos of almost anything that is not top secret, not obscene in some places, or does not violate a specific court order such as photographing during a trial etc.

You can also legally use those photos as you see fit, despite any signs or warnings to the contrary.

Ronnoco

[Frog]

I'm thinking you are posting this due to the eiffel tower post in critiques or was it view finder.
Either way I'm wondering how much these copyright laws vary from country to country.

[Ronnoco]

I'm thinking you are posting this due to the eiffel tower post in critiques or was it view finder.
Either way I'm wondering how much these copyright laws vary from country to country.

Not very much at all frog, because they are governed by the International Copyright Convention and by numerous treaties.

Moreover the basic concepts are the same. Copyright governs intellectual property and a building or a light show is rather far removed from intelectual property.

By the way I am posting simply because it is common to tell photographers that you can't take a photo of something because it is against copyright and too many photographers have not bothered to check it out.

I did, studied the act carefully as well as case law and was even asked to give workshops on copyright to television producers.

Ronnoco

[Sebastian]

http://blog.fastcompany.com/archives...possessed.html

[Sebastian]

Q : Is the publishing of a photo of the Eiffel Tower permitted?
A : There are no restrictions on publishing a picture of the Tower by day. Photos taken at night when the lights are aglow are subjected to copyright laws, and fees for the right to publish must be paid to the SNTE.

From the official site:

http://www.tour-eiffel.fr/teiffel/uk...faq/index.html

[Sebastian]

I think this is an excellent example of what IS copyrighted versus what SHOULD be copyrighted. To me, copyrighting a light display seems like a ludicrous abuse of copyright law. The company was paid for their services, copyright does not protect them from any further loss of income. Instead, they are forcing photographers into licensing something that should really have no need to be licensed.

Stuff like this does not sit well with me all. Copyright abuse is getting really out of hand.

[Photo-John]

The copyright act indicates specifically that it relates to published works, music, film, photos, audio, manuscripts, poetry etc.

What is "the copyright act?" Is this a Canadian act or is it international? I think that when we're discussing legal issues we have to be very careful about generalizing. Although the basic concepts of intellectual property may generally be the same, regional laws will vary and this could cause some people big problems. We need to make sure, as best as possible, that no one here is mislead into thinking they can or can't do something when the reality is otherwise. In this case, you should say where this "act" was passed and who it applies to.

Thanks!

[Ronnoco]

Let's start all over again. It was brought to my attention that I oversimplified things.

In Canada, US, and Britain, buildings, bridges etc. are not copyrightable but architectural works of art have been added to copyright legislation in Canada and U.S, and probably in Britain as well, but the requirement for copyright is originality. If it is not original, it is not subject to copyright in any of these countries.

In Canada and the U.S., works of art permanently fixed in a public place are not subject to copyright. This means in Canada and U.S. that you can take photos of any architectural work of art in a public place or from a public place, use it as you see fit, and not violate any copyright.

In the US and Canada, copyright of architectural works of art means that you cannot duplicate the building or any of the originality involved in its structure. Since Canadian law is based on British law, it is probably similar in Britain. Some american lawyers feel that it is impossible to infringe copyright related to architecture unless you actually build a similar structure or use a similar architectural design or method. This is based on the "fraudulent, passing-off as one's own work" requirement in infringement as defined in copyright law, as well as on the definition of "copying".

I hope that I have been specific without oversimplifying and shown that there is a least a little bit of logic in the laws.

Ronnoco

[Greg McCary]

So, Can Time Magazine print a night picture of the Eiffel tower on there next cover without paying some fee or tax? Or can I post night pictures that I take on a web site and sell them with no fees or taxes? From what I read on the Eiffel Towers offical site No, but Ron you are saying yes, am I right? I hope this isn't a dumb question...
Greg

[Ronnoco]

So, Can Time Magazine print a night picture of the Eiffel tower on there next cover without paying some fee or tax? Or can I post night pictures that I take on a web site and sell them with no fees or taxes? From what I read on the Eiffel Towers offical site No, but Ron you are saying yes, am I right? I hope this isn't a dumb question...
Greg

Three issues here:

First issue: Is a light show or a light display a copyrightable presentation? as the law is
currently written in Canada, US? Well, I will continue to look, but as yet I
have seen no reference to a light show or display as being a copyrightable
work, specifically mentioned in the law.

Second issue: Even if a light show is considered an artistic work, an artistic work in a
fixed location in a public place is not subject to copyright. Eiffel Tower is
certainly a fixed location.

Third issue: Even if it is subject to copyright, what constitutes infringement? Remember
in all countries a substantial duplication of the work is necessary. This
certainly cannot be accomplished with a still camera and for that matter
some lawyers would argue that it is only possible by putting on the same
kind of live light show on the Eiffel tower. Hardly likely!

So, I certainly have not found any reason in law, why anyone should seek permission or pay any fee. Making money and/or controlling the use of images certainly seems to be the name of the game but that does not mean that policies from municipalities or other organizations have any basis in law.

Cities in Canada have often found through citizen court challenges that their policies are not legal and have had to make changes.

Ronnoco

[Ronnoco]

I think this is an excellent example of what IS copyrighted versus what SHOULD be copyrighted. To me, copyrighting a light display seems like a ludicrous abuse of copyright law. The company was paid for their services, copyright does not protect them from any further loss of income. Instead, they are forcing photographers into licensing something that should really have no need to be licensed.

Stuff like this does not sit well with me all. Copyright abuse is getting really out of hand.

I agree with you. Compounding the problem however is that if you have dealt with companies and large organizations, you find that the policies of the best, bend the law to the breaking point in their favour, and the worst sink to an even lower level.

Legally, a light display would seem impossible to prove original (a copyright requirement) and impossible to duplicate or prove infringement. To use legal terms a photo is definitely not by any interpretation a substantial copy (another requirement) of the light show. (artistic work).

Ronnoco

[readingr]

I agree with you. Compounding the problem however is that if you have dealt with companies and large organizations, you find that the policies of the best, bend the law to the breaking point in their favour, and the worst sink to an even lower level.

Legally, a light display would seem impossible to prove original (a copyright requirement) and impossible to duplicate or prove infringement. To use legal terms a photo is definitely not by any interpretation a substantial copy (another requirement) of the light show. (artistic work).

Ronnoco

Ronnoco would you mind if I call you Ron as I can never remember how to spell Ronnoco.

The problem with the Eiffel Tower is that it comes under French Law and I believe that in France all property has to be covered by an agreement before money can be made from the sale of photographs of that property.

What I don't know is, if you post this on a Web site in another country to make money from the photo whether French Law comes into play or is it covered by the laws of the country you are posting it in?

Copyright law is different and dependant on the country. I beleieve that the EU is trying to unify the Copyright law as in Poland for instance you can share anything that is copyrighted amongst your immediate family (this includes uncles, aunts, nieces and nephews)

Roger

[Greg McCary]

Not to get to far off of the subject, but I always wondered about copyright laws for musicians in other countries. If you have any experiance on e-bay for instance bootleg concerts and other music is a huge problem, and very easily avaliable. I know I've bought it, some of it is great quality too. It seems a lot flows out of South America. Is it against the law to buy it if it comes from a country with no laws or does international law cover them all???
Greg

[Ronnoco]

Ronnoco would you mind if I call you Ron as I can never remember how to spell Ronnoco.

The problem with the Eiffel Tower is that it comes under French Law and I believe that in France all property has to be covered by an agreement before money can be made from the sale of photographs of that property.

What I don't know is, if you post this on a Web site in another country to make money from the photo whether French Law comes into play or is it covered by the laws of the country you are posting it in?

Copyright law is different and dependant on the country. I beleieve that the EU is trying to unify the Copyright law as in Poland for instance you can share anything that is copyrighted amongst your immediate family (this includes uncles, aunts, nieces and nephews)

Roger

No problem. Ron is fine.

By agreement, Canada, US, Britain etc. recognize and protect the intellectual work of authors from other countries but under their own copyright laws.

Technically it is possible on the Internet to NOT infringe American copyright law for example and TO infringe the copyright law of another country. Of course, until tested in court in the other country, it is not even certain whether any infringement has taken place at all. If infringement in the other country was even proved, apparently lawyers feel than enforcement in the US is next to impossible.

This is of course the reason why the various copyright conventions such as the Berne one and also Free Trade treaties etc. are trying to harmonize copyright laws to avoid this kind of situation. This is also why copyright laws in most countries tend to be very similar.

It should also be pointed out that there are a lot of gray areas in the copyright laws of all countries in that what may be in the law has not been tested in court. Only blatant infringement usually gets to court, because the cost of instituting a law suit is about $50,000. Continuing the process of course adds to that amount. (In the US it may be more) The fact that legal costs MAY only be recovered if you win and can actually collect them (OJ apparently hasn't paid yet) means that it is quite a gamble. Lawyers, also will not work on any contingency percentage unless they are absolutely certain that they can collect either.

Ronnoco

[drg]

The problem with all of this is that the interpretation and application of published law must take into account the court decisions and their implications! The International Copyright treaty has a couple of tricky phrases that boil down to the law of the country where the infraction occurred is the convening authority. Unless the infringed holder can show standing in another country. That is a separate set of agreements from any Copyright Treaty.

In the United States there is a huge body of case law that allows for a 'design and its expression' to be copyrighted and registered as a trademark. The Disney properties as example are all so protected to the point that stock companies generally won't even carry photos of Disneyland, Disneyworld, etc without it having come from an authorized source.

There was huge outrage when it became known how many classic images Microsoft registered for exclusive use. The Digital Millennium Copyright Act adds another whole layer to this problem.

California adds a recognizable entity to the mix. Unless photographing for 'journalistic' purposes (meaning paparazzi) there are public figures whose image is their business and property (and are so registered) and using the image without their consent is actionable and a violation of a list of laws very much backed up by court decisions.

The sporting world in terms of Professional sports in the United States is very aggressive in the unauthorized commercial use of any images. Major League Baseball has even gone to court to protect the statistics of their games!

Ask anybody who lives in New York City (and other Metro areas) about taking lots of photos of (fill in the blank). Tourists periodically get hassled if they take more than one or two photos of anything that is not considered a 'regular' landmark. Is it against the law. A lot of it is because sidewalks are not necessarily public property! The 'sidewalk' may really be an extension of the plaza of a building.

The same body of law in the United States that allows for a business to require cameras to be left at the door also applies to the photographing of venues that are visible from a public space. I regularly see at the entrance to groceries stories the note that photography is prohibited. That is simply a case of expression of private property law.

This is a very complex and evolving issue.

[Ronnoco]

Architectural Works Copyright Protection Act (United States) section 120

a) Pictorial representation 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 ordinary visible from a public place.

A public place in copyright by the way was defined by the US Supreme Court as "a place to which the general public has access". This would imply that a public place is not necessarily public property under the american law.

Ronnoco

[Ronnoco]

Copyright and trademark are two different things:

Trademark infringement is defined as another person using a registered trademark or a similarly designed trademark in such a way as to confuse the consumer as to the source of the goods and/or services.

It would seem that taking a photo of scene with a trademark in it would NOT meet the above requirement for being trademark infringement.

Ronnoco

[Ronnoco]

Not to leave out British law:

Copyright, Design and Patents Act 1988

Section 62: buildings and works of artistic craftmanship in a public place or a place open to the public.

2. b) the work is not infringed by making a photo or film of it.

Notice that in Britain as well a public place is not necessarily public property but rather a place open to the public.

Ronnoco

[Ronnoco]

One requirement of a copyrightable work is that it has to be in a fixed form which seems to eliminate fireworks and light shows. Infringement also involves copying a whole or substantial part of a work. It is impossible to copy a whole or substantial part of a fireworks or light show with a still camera.

Vic Perlman, Managing Director of the American Society of Media Photographers and
a copyright lawyer with reference to a fireworks display said it could not be copyrightable because it was not fixed. (fixed form is necessary for a work to be copyrightable)

Ronnoco:

[drg]

The Architectural Works Copyright Protection Act does allow for photography on its own, but the copyright rules regarding protection of the expression of industrial design may also come into play. The ordinarily visible clause in AWCP can include that as a result of access to that 'public place' that is not public property, other laws, not copyright or trademark may additionally apply.Copyright won't prevent use of photography, ownership of the right to use that image will. This is separate from the copyright findings regarding public use of specifications for public interest.

An interesting question that has arisen in Chicago has to do with whether certain landmarks are 'buildings' or some other object such as sculpture. Lawyers!!! arghh.

[drg]

It isn't necessarily the act of photography that is the problem, it gets confused by many with what you do with that photograph once it has been made.

[drg]

Fixed expression only applies to certain elements. The part of firework shows and light shows that comes under copyright is the Industrial Design. Thus the expression of that industrial design is wholly protected. If I photograph a pattern in one of these shows, I can't sell the recognizable pattern that has been copyrighted by the originator. A fine line, but as I mentioned before, greedy people. Besides, if I design a light show, I don't want someone copying even portions of it in such a way that it could be reproduced. Fair use for advertising or publicity yes, duplication no.

Further more, these live performances have related laws regarding rights to record or reproduce that have nothing to do with copyright that prevent their being documented.

Live theater has long as a condition of performance rights to a work, included prohibitions on recording or mechanical reproduction (meaning traditional photograph).

Copyright is a fascinating area and its basics are very straight forward. The devil is in the details of each situation.

I've been photographing architecture and building for over twenty years and there are jurisdictional issues as well. When extra-legal entities like associations, districts, and authorities kick in, the laws get wild. We have park districts where you will rarely see any photography of structures as the 'live' view is meant to be part of the selling point of the experience. To commercially use photos of these buildings require permissions which are rarely granted. There are some private architectural parks in the southwestern portion of the United States where there is no real public access, but they are considered public places but there are restrictions as a condition of that access.

I have architectural photos of several major sports stadiums take during construction as a result of work I was hired to do. But the moment the building was completed from the contractors legal point of view, I no longer could photograph for commercial purpose the interior. At that point it wasn't a public place as it had not been opened to the public. And the public has never been allowed access for purposes other than that they have been ticketed for. One small example.

[Ronnoco]

Fixed expression only applies to certain elements. The part of firework shows and light shows that comes under copyright is the Industrial Design. Thus the expression of that industrial design is wholly protected. .

There is a disagreement among copyright lawyers. Some feel that it is the setup of the lights, the programming involved since it is now done by computer, the sequence and organization of the show in the material form of a script but not the results i.e. the temporary lights in the sky which have no lasting material form.

The court cases in which the concept of fixation has arisem have determined that copyright subsists only in works which are "expressed...in some material form, capable of identification and having a more or less permanent endurance."

Ronnoco

[Ronnoco]

Further more, these live performances have related laws regarding rights to record or reproduce that have nothing to do with copyright that prevent their being documented.
Live theater has long as a condition of performance rights to a work, included prohibitions on recording or mechanical reproduction (meaning traditional photograph).

.

Live performance however is the performance of a PERFORMER and infringement applies only to audio recording in Canada, and both video and audio recording in the US>

THis would certainly eliminate light shows and fireworks shows.

Ronnoco

[Ronnoco]

The Architectural Works Copyright Protection Act does allow for photography on its own, but the copyright rules regarding protection of the expression of industrial design may also come into play. .

But if pictorial representation and the display and distribution of photographs of the architectural work do not infringe the copyright then it seems that copyright rules regarding the expression of industrial design do NOT come into play.

Ronnoco