Law: Buildings Copyright and Trademarks
The New York City skyline from New Jersey, across the Hudson River. All these buildings are visible from a public place, so copyright law specifically allows us to photograph them.
DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
Copyright
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)
Trademarks
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.
Trademarks
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.
Building Rights
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) .
