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Public buildings photograph

Posted: Sun May 24, 2009 11:19 am
by gooner58
Having researched the basics of copyright law I cannot determine the following: If I want to photograph, reproduce in a book or on a postcard and sell for profit a photograph of a building that is privately owned but in the public domain, do I need permissions from the owner either as a courtesy or legal requirement ?. Further...if the building I am publishing carries on it a name of a business in the form of a logo or trademark; say McDONALDS or THE BANK OF ENGLAND or BATMAN or PHANTOM OF THE I again need to seek permissions to do this ? The logo/trademark one can assume was commissioned and designed and no doubt attracts some level of intellectual ownership and copyright yet is probably not owned by the owners of the building I am photographing. I would appreciate anyone being able to shed some light on this grey area of copyright law. Thank you.

Posted: Mon May 25, 2009 9:26 pm
by CopyrightAid
Bit confused - I can't see how a photo can be privately owned AND in the public domain, the two terms seem contradictary.

Is it in the public domain - i.e. did the photographer die over 70 years ago?

Posted: Mon May 25, 2009 9:50 pm
by gooner58
Thanks for the reply...agree that it is contradictory, maybe I've got my terms wrong....what I meant was that an exterior shot of a building and which is in everyday public view; hence my assesment that it is a "public" building and in the "public domain" is on reflection misleading. I assumed that it would be in the public domain, for example like the buildings that are in countless street shots of London or Bath or any major city. However terminology aside and corrected I hope the rest of my question still makes sense about usage of such buildings and 3rd party logos on them. And by the way I am talking about a new photograph not an old one. I look forward to your reply.

Posted: Sat Jan 30, 2010 1:27 am
by AndyJ
Buildings generally are not subject to copyright. If you can photograph a building from a public place then you may do so and you do not need the owner's permission. As to whether it is courteous to seek their permission, that is up to you, but it is not a legal requirement. Concerning the other matters you mention such as the inclusion of possibly copyright or trade marked signage etc, it largely depends of their prominence. If they are incidental to the image, that amounts to fair dealing (section 31 of the CDPA) and from a trade mark point of view there would be no realistic grounds for infringement because the trade mark would be clearly seen in its existing setting, not applied to another setting.
But there are a number of exceptions to the general rule on buildings. For example certain places may appear to be 'public places' but are in fact controlled in other ways. Such as the Royal Parks in London, Trafalgar Square (permission from the Mayor of London required), large shopping malls and other developments such as Canary Wharf in East London which are classed as private property to which the public is permitted access, National Trust properties etc. By and large all these and many other examples require written (and often paid for) permission before photographs of a commercial nature may be taken. Of course you could take photographs of these places posing as a tourist and probably get away with it, but it's best to know the legal situation. Finally should you venture to Paris, be aware that the light show which illuminates the Eiffel Tower by night is a copyright performance, although goodness knows how they expect to enforce it!

Public building photograph

Posted: Sat Jan 30, 2010 9:25 am
by gooner58

Thanks for your response regarding my query.

I think if I took an exterior photograph of (say) a theatre with the logo for use in a calender, the legal permissions and payments would be too significant to make commercial sense. If however, the logo and building was in the public domain it would be another matter. First of all, the theatre owner would need to give permission, then the Producer of the show would need to give permission and lastly the designer of the logo (usually owned by the Producer, but not always) would need to give permission. Assuming these permissions were granted I would imagine there would need to be payments made to all of these parties. I have decided therefore to not persue this idea unless of course there was a legal precedent which would enable this to do done easily and affordably.
Needless to say, I cannot find one...yet.

Thanks once again for the reply.


Posted: Sat Jan 30, 2010 11:18 am
by AndyJ
Gooner, I think you are worrying unnecessarily. Try to separate out copyright from trade marks. Trade marks are only infringed if someone who is not authorised to use the particular mark, does use it (or something very similar to it) in connection with selling goods of a similar nature. The purpose of trade mark protection is to protect businesses from losing sales etc to a rival through unfair use of the first company's good reputation etc. So if you were selling tickets to a performance which was similar to say, the Mousetrap, and you used some logo which was indistinguishable from a logo used by the Mousetrap production, that might constitute an infringement, always assuming the trade mark was registered. If it wasn't registered, then the common law tort of passing off might apply. So you photographing a building which happens to have a logo or other trade mark on it does not infringe that trademark, unless you somehow convey the impression that you are trading as that theatre or production company.
Copyright law exists largely to protect the right of an author or creator of an original work such as a piece of music or writing, a play, performance, painting, sculpture or photograph etc to exploit his work for financial gain, to the exclusion of others. An infringement does not need to be for the purposes of financial gain, but such activities as private study, criticism and review are generally not infringements as they are classed as fair dealing. The other exemption which I mentioned earlier, is that of incidental inclusion. This category would almost certainly apply to your proposed photograph of the front of a theatre which might include a piece of copyright artwork etc. What constutues 'incidental' is of course a matter of judgement which only a court could decide (although there is some caselaw on the subject). For instance if you took a picture of a typical High Street it would probably include dozens of logos and trademarks, all of which are probably in copyright, but this would almost certainly be incidental and no copyright tribunal or court woulld find this to be infringement. However, if you decided to play safe and seek permission to include some copyright material in your photograph then you would only need one permission: from the copyright owner or his agent. And you should not expect to pay for the privilege unless it is clear that you stand to make money largely as a result of including the copyright item. Look at this another way: if you took the picture and then photoshopped out any copyright item or so altered it that it was no longer recognisable, would the picture still be usable for your purpose? If the answer is yes, it seems likely that leaving the copyright item in probably makes it incidental inclusion.