PART I: COPYRIGHT ISSUES AND PUBLIC PLACES

Can you legally take a photograph of private property in the United States? The answer is yes so long it is taken while you are standing on public property or in an area that is open to the public. You may photograph without the consent of the property owner.

Generally speaking, if you are in a public place you may take photographs of anything you can see from your position. You can take photographs of people (including children), bridges, public buildings, private homes, airports, vehicles, and even accident scenes. However, what you do with those photos may be another issue altogether.

Is a building protected by copyright? The architectural designs of buildings created after December 1, 1990 are protected by copyright. Fortunately for us photographers, the copyright does not include distribution of photographs of the constructed building, if the building is in a public place or visible from a public place. Federal law specifically exempts constructed buildings from copyright protection:

United States Code, Title 17, Chapter 1, § 120.a 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.

Likewise, you don’t need permission to photograph a public building from inside the building itself. Also no permission is required if you stand on a public street and photograph a private building like a church or a house. However, you do need permission to distribute images of structures such as sculpture because such works are copyrighted by the artist that created them. Sculptures are protected by copyright even if they are in a public place or visible from a public place.

Chicago’s Millennium Park contains art works that are copyrighted by the artists. While there should be no problem with taking photographs of the works for personal use (such as a family album or display on an informational blog), you could run into copyright infringement issues should you try to sell those photographs.

“The copyrights for the enhancements in Millennium Park are owned by the artist who created them. As such, anyone reproducing the works, especially for commercial purposes, needs the permission of that artist.” SOURCE

According to an article by the Christian Science Monitor

Under copyright law it can, explains American University professor Christine Farley. “Just selling the physical work doesn’t mean [artists] part with their intellectual property rights.”

The article also explains the limitations on selling images of art work installed in the park:

Anyone wanting to sell copies of a work of art – wherever located – must specifically purchase the right to do so. According to attorney Henry Kleeman, who negotiated with park artists on the city’s behalf, Chicago bought a “perpetual paid-up license to reproduce the artwork for commercial purposes.” SOURCE

What if you take a photograph of a public place and there is a recognizable trademark in the frame? A trademark is any word or combination of words, symbols, packaging, colors, sounds, scents or any combination of these that allow identification the source of goods or services. If your work contains a trademark image, then you have committed trademark infringement. Trademark infringement is a separate issue from copyright law.

A photographers copyright exists from the moment the shutter is clicked. It does not matter if the image is film or digital. Copyright law protects the photographer from that moment. Even if the photograph is never registered, the copyright exists and is protected by copyright law.

United States Code, Title 17, Chapter 1, § 412 Registration as prerequisite to certain remedies for infringement

Registration of your copyright with the United States Copyright Office allows you to seek statutory damages for infringement rather than actual damages. What’s the difference? The statute sets specific amounts of money that you may collect from the offending party, whereas actual damages will be limited to the damages that you can prove. Usually this is the standard licensing fee plus any profits the offender realized from the use of your image.

‏You can register your copyright even after an infringement has occurred and still pursue legal action in a court of law once you receive your certificate of registration.

Section 412 of the copyright law provides that registration of your work with the Copyright Office is required before a court can hear your case. But if you discover your work has been used without your permission, you can still register your work after the fact and recover actual damages.

412. Registration as prerequisite to certain remedies for infringement

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(b), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

Statutory damages can range from $750 to $30,000 per incident depending upon what the Court believes is necessary to prevent the offender from future infringements. Statutory damages can be as high as $150,000 if the copyright violation was willful or intentional. Statutory fees are usually much higher than the actual damages suffered by the photographer. Therefore it is wise to register your copyright as soon as possible.

The use of a copyright notice is not required under U. S. law, but it is helpful to identify your work as your own. This is traditionally achieved by placing a c inside a circle like this: © 2008 Jane Doe.

Well it is established that I can take the photograph, but can I sell the photograph? I am still researching this issue, but it seems that the answer is yes I can sell the image. The photographer owns the copyright and therefore may distribute and publish the photograph.

PART II: PHOTOGRAPHING PEOPLE IN PUBLIC PLACES

Generally speaking, you may take photos of any person in a public place for editorial and artistic purposes without their consent, and without a model release. However, you may not use the likeness of any person for commercial use without consent. So what’s the difference between editorial use and commercial use?

Simply put, commercial use of a person’s likeness occurs when the image is used to endorse a product or service. Editorial and artistic use of an image does not endorse a product or service. As long as you aren’t using someone’s image to sell a product it is artistic and editorial and can be sold, It’s when you use someone’s likeness to sell goods that requires a model release. The reason that stock companies require a model release for photos of people is that it is presumed that any business that buys your photo of a person does so with the purpose of using that image to sell their product or service. Street candids of people you do not know, if sold only as photos not associated with any goods or services do not require a model release. If this were the case, magazines, newspapers, and the like could never publish a photo of a street scene (such as an accident or a protest) where people may be recognized.

The landmark United States case, Pavesich v. New England Life Insurance Company, 122 Ga. 190; 50 S.E. 68 (1905), first defined the issue. The Court held:

“So thoroughly satisfied are we that the law recognizes within proper limits, as a legal right, the right of privacy, and that the publication of one’s picture without his consent by another as an advertisement, for the mere purpose of increasingly the profits and gains of the advertiser, is an invasion of this right [of privacy].”

Therefore, commercial use of someone’s likeness without consent is a violation of that person’s right to privacy and you can be successfully sued.

The recently decided case of Nussenzweig vs. diCorcia, 2007 NY Slip Op 02413 [38 AD3d 339], seems to sum up the editorial use of a person’s likeness. The Court declared the following:

“The sale of an individual’s image in a limited edition of 10 photographic prints for an aggregate of some $240,000 is a far cry from the use of a person’s likeness to adorn sacks of flour distributed by the thousands, the situation posed by Roberson v Rochester Folding Box Co. (171 NY 538 ¹⁹⁰²) that Civil Rights Law §§ 50 and 51 were enacted to redress (see Arrington, 55 NY2d at 439; Davis, 90 AD2d at 378). The publication of plaintiff’s portrait in both the popular press and art media confirms that the image is “a matter of legitimate public interest to readers” so as to bring its use within the newsworthiness exception to the privacy statute (Pagan, 32 AD2d at 343; see Stephano v News Group Publs., 64 NY2d 174, 184 ¹⁹⁸⁴). Thus, the inclusion of the photograph in a catalog sold in connection with an exhibition of the artist’s work does not render its use commercial, as plaintiff suggests (Hoepker, 200 F Supp 2d at 350 [construing exhibit catalog as “pure speech”]). If the image is a matter of public interest, it is immaterial whether that interest is satisfied by viewing the original in a museum, art gallery or private dwelling or by perusing a reproduction in an art magazine or other publication.

“That profit may be derived from the sale of art does not diminish the constitutional protection afforded. As noted in Bery v City of New York (97 F3d 689, 696 [2d Cir 1996], cert denied 520 US 1251 ¹⁹⁹⁷), “paintings, photographs, prints and sculptures . . . always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection.” The public expression of those ideas and concepts is fully protected by the First Amendment, irrespective of whether an artist or speaker derives income from such expression (see e.g. Riley v National Federation of Blind of N.C., Inc., 487 US 781, 801 ¹⁹⁸⁸; ⁷Time, Inc. v Hill, 385 US 374, 397 ¹⁹⁶⁷; Hoepker 200 F Supp 2d at 350)."

Photography Is Not A Crime But Be Careful

Here are some tips on your right to take photographs:

If you are in a place with public access, you may take photographs of whatever you want, including children, bridges, buildings, homes, airports and accident scenes. What you do with those photos may be restricted, but you always can take the photograph.

Property owners may restrict photography, while on their property, but owners can not prevent you from taking photographs from a public place.

Photography can be restricted in the following situations:

a. by commanders of military installations for national security interests
b. by the Department of Energy for nuclear facilities
c. you may photograph anyone in public areas except where there is an expectation of privacy (as in restrooms and dressing rooms).
d. you may not block public access areas or create hazardous conditions

PART III: GENERAL RESTRICTIONS ON PHOTOGRAPHING PUBLIC PLACES

You got the most amazing photograph of that Orca jumping out of the water at Sea World. You upload it to RedBubble and everyone loves it. You sold a framed print and 25 cards. And then you get a summons in the mail. You have been sued for selling the photograph that you hold the copyright to.

The above story is fictional (as far as I know), but not beyond the realm of possibility. More frequently large corporations are attempting to prevent photographers from earning a living by selling their images.

Below is a list of organizations which protest photographers and artists selling images of their structures, products, and symbols. If you have any of these in your portfolio, be prepared to stand up for your rights as a photographer.

Millennium Park Chicago
The Cadillac Ranch
Interiors of New York Stock Exchange
The Pacific Exchange
The Mercantile Exchange
Commodities Exchange
Chicago Board of Trade
Rolls Royce Car and logo/hood ornament
Disney’s Epcot Center and Disneyland (also depictions of the Disney characters)
The Lone Cypress tree at Pebble Beach, CA
Hollywood Sign
Mystic Marine Museum
Williamsburg and it’s re- enactment actors/performers
Newport Mansions
Coca Cola World
Rock & Roll Hall of Fame
The Mississippi, Delta Queen and Natchez paddle steamers
Rockefeller Center – all buildings and sculptures
Olympics Athletes, Logo and torch
Hollywood Walk of Stars, Chinese Theater
Pro Sports teams and insignias
Maserati Car
Porche Car
McDonald’s Arches
NASCAR images
Biltmore (Virginia house) and San Simeon Estate
Beverly Hills Sign
Busch Gardens
Sea World, Florida & California)
Universal Studios
Oscar award statue
The British Concord
The Louvre & IM Pei’s Pyramid
Major league sports
Indy 500 race
The Grand Ole Opry
The TGV (French high- speed train)
Chevrolet logo/hood ornament
Mustang Horse Logo
Thunderbird Logo
Barbie – the dolls, name and any product
Dartmouth College and the "tower
San Diego Zoo
Eiffel Tower at night (the night lighting design is copyrighted)
Japanese Bullet Train
Exterior of NY Stock Exchange (exterior)
Vehicles with recognizable designs (Jaguar, Porsche, Lamborghini, etc…)
Emmy and Grammy award trophies
Swan Boats in Boston’s Public Gardens
The Flatiron Building, NYC
The Chrysler Building, NYC
The New Orleans Superdome

The list and more information can be found at the Picture Archive Council of America

PART IV INTRODUCTION TO FAIR USE

Fair use of copyrighted work for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” n1

After years of court decisions regarding the fair use of copyrighted material, the United States Code was amended to include a fair use exemption to the exclusive copyright law. The exemption for fair use is not a license to appropriate copyrighted work without a valid purpose. This does not mean you are exempt from a lawsuit for using copyrighted material. Anyone can be sued just about anytime and for anything. Under the doctrine of fair use, you have a defense to the suit and may avoid damages: the good faith fair use defense [17 USC 504©(2)]. n2 This defense is available only to the person who can demonstrate that they reasonably believed their use of copyrighted material constituted a fair use under the law.

A good starting point for determining whether fair use applies to a particular situation is to determine first whether the work you want to use is protected by copyright law in the first place. Copyright protection does not apply to the following types of works: works that lack originality, concepts and ideas n3; works of the United States Government n4 ; works in the public domain n5 ; and facts.

Once you have determined that the work you want to use is protected by copyright, ask yourself if your use of the material constitutes exercising one or more of the exclusive rights held by copyright owners n6 such as copying, distributing, and making derivative works from the original work (see note 6 for a complete list of copyright holder rights).

If you intend to exercise any of the rights of the copyright holder then you must examine your intended use according to a four part test set forth by the case opinion of Justice Joseph Story in Folsom v. Marsh, 9 F.Cas. 342 (1841) n7 and has been incorporated into copyright law. n8

purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

A parody transforms the original work by holding it up to ridicule. Scholarship, research and educational purposes may be fair use because the copyrighted work is the subject of a review or commentary on the subject matter.

nature of the original copyrighted work

The dissemination of facts and information is beneficial to the public. You will have a better case for fair use if you copy factual works than copies of works of fiction, such as novels.

A stronger case for fair use can be made for using material from published work than from unpublished work. Fair use for unpublished works is more difficult to assert because an author has the right of first publication.

amount and substantiality of the portion used in relation to the copyrighted work as a whole

The more you copy, the less likely you will be successful in a defense of fair use. Keep in mind though your copy will not be a fair use if you take the core concept of the work. This is not the case where the work is a parody, since a parody goes directly to the heart of the work. n9

effect of the use upon the potential market for or value of the copyrighted work

If your derivative work deprives a copyright owner of income, you may be at risk for a lawsuit and end up owing damages. In the landmark case of Rogers v. Coons, 960 F.2d 301 (1992) n10 a sculptor used a copyrighted photograph without asking for permission as the basis for his wooden sculptures. The sculptor copied all of the elements of the photograph and made quite a bit of money from his works. When sued for infringement, the sculptor relied on fair use and argued that the photographer was not a sculptor and had probably never considered creating a sculpture based on the photographs. The court rejected the sculptor’s defense and held that all that mattered is that a potential market for sculptures derived from the photograph existed.

A parody may diminish or in some cases even destroy the market for the original, especially if the parody is exceptional. In the case of parody, “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original — any bad review can have that effect — but whether it fulfills the demand for the original.” n11

You should always attempt to get permission from the copyright owner before using any copyrighted material. When it is impossible or not practical to obtain permission, make sure the doctrine of fair use clearly applies to your intended use. It is also important to know that the United States Copyright Office can not grant permission for use and it can not determine whether your intended use is permitted by fair use. When in doubt and you must use copyright material, consult an attorney to avoid unnecessary and costly litigation.

PART V PUBLICITY RIGHTS – WIP

Right of publicity (also called personality rights) is the right of a person (especially celebrities) to control or prevent unauthorized commercial use of a name, an image, a likeness or other use of a person’s identity. Personality right is a property right so the copyright protection survives the personality just like any other copyrightable property.

I will update the writing as I find time to do the research.

SOURCES & INFORMATIONAL LINKS

http://fairuse.stanford.edu/Copyright_and_Fair_...

http://www.copyright.gov/circs/circ1.pdf

http://www.legalandrew.com/2007/10/11/photo-law...

http://www.copyright.gov/

http://library.findlaw.com/1999/Mar/11/129482.pdf

http://www.photosecrets.com/tips.law.html

List of companies and organizations which currently trying to prohibit resell of images taken of their facilities: http://www.pacaoffice.org/resources/specialRele...

If you are shooting on United States federally owned land, you may need to obtain a permit: http://edocket.access.gpo.gov/2007/E7-15845.htm

Of interest to all nature photographers:

Rahall Concerned Fee Regulations May Violate Media’s First Amendment Rights
December 12, 2007
CONTACT: Allyson Groff, 202-226-9019

“Washington, D.C. – House Natural Resources Committee Chairman Nick J. Rahall (D-WV) today summoned Interior Department representatives before the Committee to scrutinize a proposed rule that has been criticized by the media as harmful to the First Amendment rights of the press and the people’s right to know. As a result of the hearing, Rahall is calling on the agency to revise the regulation before the rule is finalized.”

“There is reason to view the proposed regulation with some skepticism. The Bush Administration will go down in history as one of the most secretive and least transparent in American history. This President has shown nothing short of open hostility to the public’s right to know,” Rahall said. http://resourcescommittee.house.gov/index.php?o...

The offending photo in Nussenzweig v diCorcia

Picture Archive Council of America http://www.pacaoffice.org/resources/specialRele...

SOURCES AND NOTES FOR PART IV INTRODUCTION TO FAIR USE

1 http://www.copyright.gov/title17/92chap1.html#107
2 http://www.law.cornell.edu/uscode/17/504.html
3 http://www.law.cornell.edu/uscode/17/102.html
Copyright protects only the particular way the author of the work has expressed him/herself, not the concepts and ideas behind that expression.
4 http://www.law.cornell.edu/uscode/17/105.html
Before you use any work of the United States Government, be sure to double check the copyright status. Certain emblems and symbols (i.e., CIA and FBI emblems) may not be copied or may have restrictions.
5 http://www.law.cornell.edu/uscode/17/usc_sup_01...
6 http://www.law.cornell.edu/uscode/17/106.html
7 http://www.faculty.piercelaw.edu/redfield/libra...
8 http://www.copyright.gov/title17/92chap1.html#107
9 Campbell v. Acuff-Rose Music , 510 U.S. 569 (1994), http://www.law.cornell.edu/supct/html/92-1292.Z...
10 http://bulk.resource.org/courts.gov/c/F2/960/96...
11 Fisher v. Dees, 794 F.2d 432 (9th Cir.1986), http://bulk.resource.org/courts.gov/c/F2/794/79...

DISCLAIMER

The foregoing is provided for informational purposes only. It is not legal advice and should not be construed as legal advice. If you are uncertain of your rights and obligations, always consult a legal professional.