Sculpture and Building Copyright: What Commercial Photographers Need to Know

by Sheri_Oz

You need to make sure you are not selling photographs of buildings or sculptures that are copyright protected or that include trademarks and brands.

In the first article of this two-part series. the issues of model releases when photographing people were discussed. This included understanding the differences between TAKING photographs and USING photographs, photography as an art-form, and the difference between selling photographs to publishers versus publishing your photographs yourself. Consult that earlier article by using the link in the sidebar.

In the current article, I will discuss what I learned online, from my own experience and, most importantly, from a lawyer specializing in Intellectual Property Law about photographing buildings, and sculptures that are found in public spaces, without risking legal action against you.

Trademarks and Brands in Your Commercial Photographs

Dreamstime will not accept any photos that have trademarks, brand names or store names on them. I assume the same is true of other stock photos websites. You are playing it safe when photos you publish yourself do not have any identifiable trademarks or names. If you find one inadvertently in your photo, you may have to eliminate it using your photo enhancement software.

On the other hand, if your photograph is a work of art, you may have more leeway. However, you have likely not reached the degrees of freedom afforded to an artist such as Andy Warhol and, therefore, I suggest you consult a lawyer to be sure.

When a Public Place Is Not a Public Place

There are sculptures on the Tel Aviv University grounds that I would love to photograph and put onto zazzle products. I had heard somewhere that objects of art located in public places are okay to photograph and you needn't ask anyone's permission. However, I was not sure if that also meant that we were free to use these photos commercially. One day, I saw a photographer at the university taking pictures. I asked him if he is a professional photographer and when he responded affirmatively, I asked if it was okay for me to take photos of the sculptures for commercial use. He replied quite rudely, saying: "The fact that you are asking shows that you already know the answer!"

While I assumed that he meant I couldn't, his answer was kind of ambiguous.

"Suspension", Sculpture by Menashe KadishmanAnd, in fact, my legal consultant said that there is no short answer. While these sculptures are out in the open, the university campus is not public property (even though our taxes support it). There is a fence around the entire campus, with gates controlling who enters the property. Therefore, we could regard the entire university campus in the same way as we would an indoor art gallery or a tourist installation or amusement park.

While the university may have an expectation that people, especially tourists, will take photographs of the grounds, the buildings and the outdoor sculptures, they may not approve of commercial use being made of these photos. The article you are now reading, on the other hand, provides a demonstration of editorial use of photography - showing as an example the Menashe Kadishman statue located between the main library building and the Museum of the Diaspora. Called, Suspension, and created in 1968, it is on loan from the Doron Sabag Art Collection.

Buildings and Art Works in Public Places

Buildings, obviously, cannot hide inside other buildings. Their exteriors can easily be photographed (except when behind high walls). That does not mean that photographers can use images of every building they see. Some buildings have copyright protection and different countries will have different laws regarding this issue. In addition, be aware that in some countries, there will be a prohibition against taking even personal photographs of buildings connected with law enforcement or national security. In the modern age of satellite images, this may seem antiquated, but it is still forbidden.

In the United States, buildings constructed before 1 Dec 1990 did not have copyright protection while many erected after that date do. In Israel, the copyright law of 2007 allows any use to be made of photographs you take of buildings and sculptures that are permanently on display in public places; if you can photograph it from the street, you can use the photo commercially or any other way. Be careful, however, when using people's homes and I think it might be fair to regard photos of family homes, even from the outside, in the same way you regard photos of people.

Private Home in Caesaria - How Would the Owners Feel About Your Use of Your Photo of Their Home?
Private Home in Caesaria - How Would the Owners Feel About Your Use of Your Photo of Their Home?
Photographer: Sheri Oz

Most countries allow commercial photographs of only the exteriors of buildings, some countries are more lenient and permit commercial photography of the interiors of government buildings.

You are advised to check the laws of the country in which you are taking pictures, the country in which you are publishing them, and your country of residence before you publish photos of buildings and sculptures. Wikimedia has an article that provides a good starting point for exploring this for a great many countries.

The Issue of Property Releases

If you want to take and use photos of a building that is copyright protected, you can try sending an email to the building managerial office requesting permission. They can just as easily say yes as no, and if you receive a positive response you may be free to go ahead without fear. If your email is ignored, you can proceed with caution. My legal consultant said that in Israel, judges do not like people who do not respond and then pounce later with a law-suit because that seems like entrapment. However, this may not be true in other jurisdictions. You may be well advised to try and get a signed property release. The American Society of Media Photographers has a discussion of this topic on their website.

If you want to take commercial photos of sculptures, buildings or other features in enclosed areas, such as the Tel Aviv University campus or the inside of a train station, for example, you need to send an email to the directorate of the facility in question. Handle their response or lack of response as per the discussion above regarding buildings.

Regarding sculptures in outdoor public spaces, you may not know if a sculpture is on permanent or temporary display, the former meaning it is in the public domain and the latter meaning it is not. Israeli law is somewhat considerate of the naive photographer, stating that if it is reasonable that the photographer did not know that an object is copyright protected, the court may refuse to sue for infringement. This may not be true in some other countries, however, and it is best that you seek out the copyright holder, who may or may not be the owner of the property on which the sculpture stands.

Remember, this discussion pertains to commercial use of your photographs. If your photos are for editorial use, fair use laws are pertinent and you can more freely use the images in a way that is not demeaning to the copyright holder (such as implying that it is in some way connected with illegal activity if that is not true).

For a discussion of editorial and fair use doctrines, click here.

Join me on dreamstime stock photo site.

Royalty Free Images

Enforcement of Copyright Law is Largely an Economic Issue

My legal consultant helped me understand that for a legal complaint to be filed there needs to be a cow that can be milked. If your assets are very limited, the expense of charging you with copyright infringement or personal injury based on use of a person's likeness in a commercial photograph just may not be worthwhile to the complainant, since it means paying a nonrefundable deposit that is a percentage of the sum of the suit. In any case, it is quite likely that you will receive a request to remove the offending photograph from the web and/or the market. If you feel the request is justified, or if the photo is easily replaced with another, that may be the sanest thing to do. After all, you do not need the headache, nor the expense of legal fees, if you can avoid these. On the other hand, if the photograph is a work of art, you may decide to decline the request.

If a suit is filed, the merit of the suit will depend on how the judge assesses the degree of harm to the copyright holder (or the individual in the case of a photo of a person) versus the value of the photograph. If your photograph has caused a company or individual to lose business or has illegitimately harmed their reputation, you may lose the case even if your photograph is a great work of art. On the other hand, the artistic value of the photograph may be such as to tip the scales the other way. The point is that nobody can anticipate the direction the court will take once a trial has begun.

You need to accurately assess the value of your photography as art. The stock photo websites are not as extremely cautious as they are for no reason. They are not dealing in art and therefore they cannot afford to make any mistakes. When you upload photos to their sites you are agreeing to an indemnity clause that lays all the legal responsibility for the photo on you, the photographer. Do not be less careful than they are in your other photographic ventures.

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Updated: 05/28/2014, Sheri_Oz
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VioletteRose on 05/31/2014

Thanks so much for the clarification :) I am glad I never used those photographs for any commercial purposes!

Sheri_Oz on 05/31/2014

In this case, VioletteRose, there is no exception. The sculpture is copyright protected and it is located in an area that has been declared not free for commercial photography. Anyone selling products with a photo of this sculpture that does not have permission is in violation. Not worth the risk. You can use photos for editorial use only. The USA has become stricter in this regard than many other places.

VioletteRose on 05/31/2014

Thanks for writing this! This is something really important as most of us create products in zazzle and cafepress using the images we photograph. In fact, the copyright of images of public sculptures is something I was thinking quite often, as I have got numerous images of some of them especially the Cloud Gate in Chicago. The reflections in the sculpture look amazing, and I have seen people posting products in zazzle, featuring the cloud gate. However, I was reluctant to do that since I have read in Wikipedia that public is free to take photographs of the cloud gate, but they can't be used for commercial purposes unless there is permission from the artist or from the City of Chicago. I can't find out if there is any exception to this rule, like if the photograph is a different piece of art created or modified by the photographer.

JoHarrington on 05/29/2014

Persistent is one word for it. Personally, I think I was being an awkward madam! But sometimes it does us good to have a tantrum.

Sheri_Oz on 05/28/2014

I remember this situation, Jo. And yes, Zazzle can be overly cautious for sure. But for them to make up that phony complaint is absurd! Glad you got it straightened out, even if you never did use those photos. Good for you for being persistent.
It is good that Zazzle and stock photo sites are careful, but then, they are purely commercial enterprises and they really have to be.

JoHarrington on 05/28/2014

Zazzle can be overly-cautious to the point of frustration in protecting perceived copyright. I've run foul of them twice.

The first time, I was in Lyme Regis when HMS Edinburgh came to anchor just outside the bay. Me and a friend took a trip out to see the British warship and much photography ensued. By and by I put two of those photographs onto Zazzle.

One was rejected. According to the company, the Ministry of Defence had lodged a copyright claim against me.

I had one on me that day (plus it's a Tory government, so they rile me by simply existing). I naturally fired off an e-mail to the Secretary of State for Defence, copying in Zazzle AND my MP. I demanded to know why they were wasting tax payer's money trawling the internet looking to penalize people trying to make a living. And did I not, in fact, OWN HMS Edinburgh, on account of my tax money purchasing it.

When nobody replied, I followed it up a week later with a 'why are you ignoring me, Tory scum' (but worded politely) e-mail. I ended up with letters from both the MoD and my local MP, both explaining that they really didn't instruct Zazzle to reject my picture. They were duly scanned in and sent to Zazzle's customer service department.

The sheepish response was that they hadn't actually been instructed by the MoD to remove the photo, they just assumed that they should reject it. I was given permission all round to use my photos.

And being the perverse git that I am, I still haven't got round to putting it back up yet! (It's been two years....)

The point I was making is that Zazzle is quite hot on clamping down on possible copyright violations. Though I guess we shouldn't rely on that.

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