Photographing Buildings - Who owns the copyright?

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MissP
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Photographing Buildings - Who owns the copyright?

Post by MissP » Thu Sep 20, 2012 4:20 pm

Hi,

I've been looking through this site (and various others) trying to get to the bottom of my question but have hit a brick wall, can you help?

I work for a historical building that is of architectural interest, is a charity and is over 150 years old. In our archive we have a series of photographs of the building over the years. What I need to know is does the company who owns the building (the charitable trust) own the copyright to the building's likeness and therefore have the right to use the images or does the photographer own the right to use the images and do we need to seek permission and/or pay to use them?

Any advice would be greatly appreciated even if it's just pointing to a building copyright document. It seems there's a lot on the copyright of images out there but not on the copyright of the building.

Many thanks!

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Post by AndyJ » Thu Sep 20, 2012 9:54 pm

Hi Miss P,
Where copyright exists in a building (more on this in a moment), that copyright is not infringed by anyone taking a photograph of it. The relevant law is Section 62 of the Copyright Designs and Patents Act 1988 which says:
62 Representation of certain artistic works on public display.
(1) This section applies to—
  • (a) buildings, and
    (b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.
(2) The copyright in such a work is not infringed by—
  • (a) making a graphic work representing it,
    (b) making a photograph or film of it, or
    (c) making a broadcast of a visual image of it.
(3) Nor is the copyright infringed by the issue to the public of copies, or the communication to the public, of anything whose making was, by virtue of this section, not an infringement of the copyright.
However owners of premises may restrict the use of photography as a condition of entry. This is the case with most National Trust properties, the Royal Parks etc, and although it has nothing to do with copyright (and the photographer will normally retain copyright in any pictures which are taken despite such conditions applying) these rules may be applied to eject anyone found in breach of them. Photographs taken from public places are not affected by these rules.

You mentioned historical buildings. Although works of architecture are protected by copyright, this has only been the case since 1911; prior to that only the architect's drawings themselves were protected (as works of fine art) and not the physical product of the drawings. And the term of copyright under the 1911 (and later the 1956) Act was 50 years from the death of the architect. In other words most buildings over 100 years old are unlikely to attract any copyright protection at all. Even under the 1911 Act, it was permissible to photograph (or draw, paint or make an engraving of) a building. So in all likelihood, the Charity which now owns the building will need permission to use any images taken by photographers over the years, except in one special category. If the Charity, or before them the building's previous owners, commissioned the taking of any photographs or the making of paintings, drawings etc, prior to 1 August 1989, then they will be the owner of the copyright in any resulting images, unless the commissioning agreement stated otherwise. Of course it is possible that any copyright which was owned by the previous owners of the house may not have transferred to the Charitable Trust along with the bricks and mortar, and could still reside with any heirs of the family.
I hope this helps to clarify things for you.
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Post by MissP » Fri Sep 21, 2012 12:27 pm

Thank you for taking the time to write that. It's extremely helpful!

Best wishes,
MissP

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Re: Photographing Buildings - Who owns the copyright?

Post by dickeverard » Thu Feb 22, 2018 4:36 pm

So what happens if I create a Trademark using an image of the historic building. For example the Eiffel Tower or Big Ben. I have no idea whether these are trademarks or not but if they were would this stop someone selling a picture that they had painted of the building which inspired the trademark.

Richard E

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Re: Photographing Buildings - Who owns the copyright?

Post by AndyJ » Thu Feb 22, 2018 9:03 pm

Hi Richard,

When you register a trade mark (and that could include an artistic representation of a real building but not a photograph of it) you have to specify the class or classes of goods and services to which you want the trade mark to apply. There is then an examination period during which others who may own a similar mark or may have some other interest (such as the actual owners of the building etc) can oppose the registration if they have valid grounds. Normally this would be because the proposed mark is too similar to a pre-existing mark, but it can also be on the grounds of bad faith.

If your registration gets through this examination stage without objection, then you will obtain a near monopoly in the UK* to use that mark in the course of trade in the classes which you chose. The registration period lasts for 10 years, but this can be renewed indefinitely.However, if for any continuous period for 5 years you fail to use the trade mark in connection with the specified goods or services, another person can ask for the mark to be revoked.

The near monopoly can extend to goods and services in other classes if it can be shown that using a substatntially similar mark to yours in the course of trade in those other goods/services would confuse the public as to the true source of the goods etc, then you may be able to claim infringement here also.

So to take an example, it might be possible to register a stylised line drawing of, say, the London Eye as a trade mark although it is likely that Merlin Attractions Ltd who own the actual structure along with a number of trade marks for the name, would oppose the registration. However assuming you were successful, that wouldn't prevent people taking and publishing photographs (or indeed drawing or making a painting) of the London Eye. Only someone who, in the course of trade, used a stylised drawing which was the same or very similar to your registered mark would be liable for infringement.

And taking your two examples, yes a drawing of Big Ben has been registered as trade mark, specifically in connection with Scotch Whisky but I cannot find a pictorial representation of the Eiffel Tower as having been registered in the UK or at the EU level.


* Trade mark registrations only provide protection within their respective jurisdictions, although UK applicants can also obtain an EU wide trade mark (formerly known as a Community trade mark)
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Re: Photographing Buildings - Who owns the copyright?

Post by dickeverard » Sat Feb 24, 2018 1:33 pm

Many thanks most interesting. The case that I am interested in concerns a monument or edifice or perhaps one might call it a folly built over two hundred years ago. This edifice is within the grounds of a "public park" managed by a Trust - the land having been donated to the public. An image of this edifice has been registered as a trademark by the Charity - this image being a depiction of the edifice. The Charity is now saying that no one is allowed to sell paintings of this edifice without paying a sum towards the charity. From what I have read on this forum, there are no legal grounds for requesting this payment. The building is over 200 years old; it is within a public space (albeit managed by a Charitable Trust) and the trademark isn't being infringed. I suppose the trademark might be considered iconic but the paintings concerned are representations of the actual building and not the trademark. There is a lot of ill feeling about his matter which has been in the local papers and BBC local news but as yet no one has questioned the legality of the demand for money from the trust. The Charity in question states that they feel obliged to seek contributions "from those who seek to profit from the use of our trademark" . However, artists who paint pictures of the monument are not, to my mind, seeking to make a profit from the trademark simply from selling original or copies of paintings made by their hand.

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Re: Photographing Buildings - Who owns the copyright?

Post by AndyJ » Sat Feb 24, 2018 4:20 pm

Hi again Richard,

This all sounds quite familiar and is somewhat similar to the stance taken by some museums and art galleries who make money by selling digital reproductions of paintings they own (very often on behalf of the nation), even though the paintings themselves are no longer protected by copyright. It becomes an issue of who can control access to the work concerned.

You are right that there are no copyright issues with making a reproducible copy of the folly. And from what you have said I don't see the trade mark being infringed. That just leaves the matter of access. No doubt the terms of entry into the property forbid any commercial exploitation of views of the folly and any other significant features within the grounds, without paying the fee you mention. The only remedy the trust have where these terms are ignored is to sue for breach of contract. But it doesn't take much imagination to find legal ways of avoiding these terms. For instance, person A visits the park and photographs the folly. He then gives the photograph to person B who makes a painting based on the photograph and sells copies of the painting. Only A is bound by the contract and he has not broken any of its terms; B is not bound by the contract and so cannot be sued for any breach even though he may profit commercially from sales of the painting etc. Also I can't see a breach of contract suit working in the case of an artist who visited the folly and then went home and painted the scene from memory. I'm sure others can come up with other wizard wheezes for legally getting around this silly stipulation.
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Re: Photographing Buildings - Who owns the copyright?

Post by dickeverard » Sat Feb 24, 2018 7:51 pm

Many thanks gain. Interesting the only relevant Byelaw simply says:

No unauthorised person shall
(i) place on the Park any show, exhibition, swing, round-a-bout, or other like thing; or
(ii) carry on in the Park any business or trade (including photographic business); or
(iii) hawk or sell or expose or offer for sale any article or thing in the Park.

Thus to my way of thinking provided one doesn't set up a stall in the Park then the Byelaw isn't being broken. There is no Byelaw regarding entry and I don't think that the Byelaws could be changed without a lot of trouble. They were written in 1966 and remain unchanged except for few explanations such as no access areas for the safety of deer and certain no dogs without lead areas. Deer have been attached and killed by dogs so no one would object to such changes but one about the right of entry might not go down too well with the public.

Regards Richard

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Re: Photographing Buildings - Who owns the copyright?

Post by AndyJ » Sat Feb 24, 2018 10:41 pm

Hi Richard,

The fact that there are byelaws does make a slight difference to my earlier remarks as disobeying them would be a criminal offence and not a breach of contract, which is a civil matter. However as you say, there is nothing in the byelaws which specifically refers to the commercial exploitation of a painting of the folly. Provided that A in my previous example did not enter the park with the intention of taking a photograph of the folly for use by B in a commercial setting. all would be well. However, arguably if A went to the park with that intent, there might be grounds for saying that A and B were engaged in a criminal conspiracy to contravene the byelaws, but I really don't see that being likely, especially as the fine for contravening the byelaws is probably in the tens of pounds!

And of course my second example would not be a problem since no photography would be involved.

In my experience, for instance in the case of the Royal Parks in London, which have similar byelaws, the definition of commercial photography is as follows:
tak[ing] photographs of still or moving subjects for the purpose of or in connection with a business, trade, profession or employment or any activity carried on by a body of persons whether corporate or unincorporate;
If such a wide definition was applied to the park byelaws you have in mind, whether or not the act of taking a photograph in the park was a commercial activity would have to judged on the basis of the whole enterprise. Interestingly, in the case of the Royal Parks, it is possible to get a licence to photograph or film on commercial basis.
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Re: Photographing Buildings - Who owns the copyright?

Post by Nick Cooper » Tue Mar 13, 2018 10:18 am

I see that what I assume is the trademark in question includes very basic line drawings of the folly from five different ground-level angles, some with the surrounding ground. Registration includes Class 9 "Photographic, cinematographic and video equipment, photographic and video films, photographic transparencies..." There is no registration for paintings or artistic works (not sure if that's even possible). I see that the Trust has objected to not only the sale of photographs of the folly, but has also claimed that using the single word name of the park or conjunction with the word "Park" as a description for the photographs is also an infringement.

I would not like to comment on just how enforceable the Trust's claims about the trademark being applicable to photographs of the actual building would be. I would think. though, that relying to the bye-laws would be more solid ground.

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Re: Photographing Buildings - Who owns the copyright?

Post by dickeverard » Tue Mar 13, 2018 1:42 pm

I hadn't actually said where the park was but it looks as though you have guessed correctly. A lawyer representing someone who called himself Bradgate Landscaping and who was using a similar logo has taken up the case and has written to the Trust. The local newspaper carried this report:

A chartered trade mark attorney and intellectual property solicitor at ....... ......, is helping the owner of the landscaping business with his case.

He said: “This case highlights the risk of making threats against businesses without a proper understanding of the law.

"Trade marks must be used commercially to remain valid.

"The whole point of trade marks is to identify and protect traders.

"If they are not used, they can be revoked.

"Surprisingly, in their recent public statements, the trust admitted that they have not made any commercial use of the trade marks, but simply want to block other people from using them.

"This approach is not permitted under trade mark law.


I expect that the lawyer is using this basis for his argument because unlike the artist who painted a picture of the folly "Old John", he was using a logo very similar to those of the trademark and he was using the word "Bradgate".

There was also mention of the fact that three words were trademarked. "Bradgate"; "Bradgate Park" and "Bradgate Country Park". Whilst there aren't many objections to the trademarking of the latter two phrases, the word "Bradgate" has wider connotations than the Park not least places in USA and New Zealand. The lawyers letter was sent almost two weeks ago and everything has been very quiet since.

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Re: Photographing Buildings - Who owns the copyright?

Post by AndyJ » Tue Mar 13, 2018 5:45 pm

Hi Richard and Nick,

Thanks for the additional detail about this folly and the Trust. It is interesting to note the man from Bradgate Landscaping has engaged his own legal advisor. If the business owner has been threatened with legal action by the Trust, there is a possibility that they may end up on the wrong end of a counter-complaint of making an unjustified threat contrary to section 21A of the Trade Marks Act 1994. Perhaps their new website, due online in a few days time, will contain amended conditions about what can and can't be done with respect to 'Old John'
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Re: Photographing Buildings - Who owns the copyright?

Post by Nick Cooper » Thu Mar 15, 2018 11:10 am

dickeverard wrote:
Tue Mar 13, 2018 1:42 pm
I hadn't actually said where the park was but it looks as though you have guessed correctly.
Yes, I'm good at that sort of thing! 8)
A lawyer representing someone who called himself Bradgate Landscaping and who was using a similar logo has taken up the case and has written to the Trust. The local newspaper carried this report:

A chartered trade mark attorney and intellectual property solicitor at ....... ......, is helping the owner of the landscaping business with his case.

He said: “This case highlights the risk of making threats against businesses without a proper understanding of the law.

"Trade marks must be used commercially to remain valid.

"The whole point of trade marks is to identify and protect traders.

"If they are not used, they can be revoked.

"Surprisingly, in their recent public statements, the trust admitted that they have not made any commercial use of the trade marks, but simply want to block other people from using them.

"This approach is not permitted under trade mark law.


I expect that the lawyer is using this basis for his argument because unlike the artist who painted a picture of the folly "Old John", he was using a logo very similar to those of the trademark and he was using the word "Bradgate".

There was also mention of the fact that three words were trademarked. "Bradgate"; "Bradgate Park" and "Bradgate Country Park". Whilst there aren't many objections to the trademarking of the latter two phrases, the word "Bradgate" has wider connotations than the Park not least places in USA and New Zealand. The lawyers letter was sent almost two weeks ago and everything has been very quiet since.
As you say, while a silhouette, the landscaping company's depiction of the folly is virtually identical to the line drawing seen on the Park's website. However, the closest the trademark registration gets to gardening is:

Class 31
Horticultural and forestry products, seeds, bulbs, live plants, cut flowers, fresh herbs; foodstuffs for animals, fish and birds.

The Trust claiming they have sole rights on the word "Bradgate" seems shakey, given that it seems to be an accepted name for a wider area - including an electoral division - and there are an number of other business using the "Bradgate [Something]" form. One even uses the folly in their logo.

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