Buildings Copyright and Trademarks
DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
Buildings created after 1990 are covered by the U.S. Copyright Act. However, this does not stop you from photographing the buildings. It just stops copycat architecture.
To fully comply with the Berne Convention, Congress enacted the Architectural Works Copyright Protection Act of 1990. This ammended the Copyright Law to include a section for Architectural Works. The creative design of decorative architectural features became similar to artwork in that, if you wanted to build identical features, you might need to obtain permission from the copyrights holders.
Fortunately, Congress recognized the enjoyment people get from photographing distinctive buildings and specifically added a special exception for photographers. So you can photograph buildings, and sell those photographs, without infringing on copyright, as long as the buildings are visible to the public.
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.
>U.S. Copyright Office, Title 17 USC Section 120 (a)
Many famous building are protected trademark. However, once again, this does not stop you from photographing them. It just means that the owners may use the distinctive design as a logo to sell goods and services.
The practice of registering a building or its image as a trademark is not uncommon in North America, though rare elsewhere. A trademark is infringed when the mark is used in commerce without the consent of the owner of the mark in a manner that causes confusion as to the source of the goods or service. There may also be unregistered trade mark or "trade dress" rights in buildings if they are highly identifiable. Photographs of trademarked buildings are not suitable for inclusion in a royalty-free image library because there is no control over the ultimate use of the image.
Even where a photo of a building was taken from a public place, and the building is not trademarked, the photo may still be unsuitable for royalty-free use. A building or other structure may become associated, by the public, with a particular company, business or other entity. If an image of the building is then used by another business, this might imply a connection between the new business and the owner of the building. Depending on what country you are in, this is variously known as unfair competition, passing off, or dilution of a common-law mark. It is legally actionable.
Photographs of such buildings as part of a skyline may be acceptable, depending on the photo, because they are less likely to give rise to this kind of confusion.
There’s a wonderful landmark case on this point called Rock & Roll Hall of Fame & Museum v. Gentile Productions, 1998. A photographer was sued for selling posters featuring his photo of a building that had been trademarked.
The U.S. Sixth Court ruled that while the trademark “might be asserted to prevent the construction of a confusingly similar building,” it was unlikely that the photographer had “made an infringing trademark use of the Museum’s name or building design…” Thus the case was vacated and the photographer could continue to sell the posters.
For more information, see Rock & Roll Hall of Fame & Museum v. Gentile Prods., 134 F.3d 749 (6th Cir. Ohio 1998).
Reply by Almetra H
June 29, 2017
I purchased a color photo of a very famous person about 3 years ago. The picture is nearly 100 years old. At the bottom of the picture, part of his name is shedding off, but enough is there to recognize it. Under these circumstances may I still claim a copyright since I purchased the picture myself? I need a lawful reply. Thank you very much.
Reply by Anonymous
April 26, 2016
The note about trademark is incorrect. This needs to be reviewed on a case by case basis. For instance, The Alamo building in San Antonio, Texas is trademarked. You cannot use images (or likeness thereof) for commercial purposes without permission/licensing. Trademark means there is an "owner" and permission has to be sought.
Reply by Anonymous
January 8, 2016
This article is the only article I have found online that perfectly addresses what I am trying to do. The definitions of Copyright and Trademark are perfectly explained in layman terms. Thank you so much. For a second, I was afraid of taking photos of trademarked buildings from public spaces to use for commercial purposes. From what I understand, this practice IS allowed so long as the photos are not used to intentionally confuse/disguise/mislead the consumer into thinking that the building is affiliated with anyone other than the actual owners of the building/company.
Reply by Anonymous
August 11, 2015
The writer has the terms ’trademark’ and ’copyright’ confused. Couldn’t read on. Thanks.
Reply by Anonymous
February 15, 2015
Thank you for working on this topic, also an issue is intellectual Property, the signage. You mentioned malls on another topic, Malls when you contact them, state you need permission for photographing without permission (private property) and they want a proposal of what you plan to do with the images to get permission.
Reply by David
January 2, 2013
Reply by Julie
July 8, 2012
I am the owner a a unique, one-of-a-kind building that is well known in the area. It has National Historic Monument status, but is privately owned and maintained. It is surrounded by public area, and is a part of historical and other types of tours. This building is being used on various websites, in logo’s, and on t-shirts that are sold in local shops. Other people are making money on the image. Can I get this building trademarked or copyrighted? I really appreciate an opinion if this is a possibility or no chance. Thank you!