by Ruth Suehle
Last month I was threatened with police intervention after taking pictures of my two-year-old. Why? We were in what you might think of as analogous to an outdoor mall. It’s a former industrial complex that’s listed in the National Register of Historic Places. Today the area has been revitalized with restaurants and office space, a large greenspace in the middle, and an attractive manmade river and waterfall. Despite there being no signs to indicate such, security informed me that the owners of the space have prohibited photography in order to “protect the intellectual property of the architecture.”
I thought it was interesting that the security guard used the general term “intellectual property.” Most of the time when this happens, photographers are told they’re violating a copyright or trademark, but the terms are used interchangeably and inconsistently. Common understanding of those terms is pretty low, so they’re often misused in general. But it’s even more understandable in cases like this, since it usually doesn’t make much sense to try to apply either.
While copyright law does protect architecture for buildings built after 1990, the space I was in is made up of buildings that are more than 100 years old. Even if it was newer construction, 17 USC 1, Section 120 (a) of copyright law states:
Pictoral Representations Permitted – The copyright in a 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.
If you prefer a case study, try “Pictures of buildings do not violate trademark – Rock & Roll Hall of Fame & Museum v. Gentile Prods.,” 134 F.3d 749 (6th Cir. Ohio 1998). The court eventually decided that in that case, someone who was selling posters of the Rock and Roll Hall of Fame was not infringing on the museum’s rights by doing so.
Unfortunately, the space I was in is private property, and that means the owners can make any absurd rule they like. The real absurdity though, is the provision in their policy that you can’t take pictures of the buildings, but you can take pictures of people. The security guard was unable to answer how I was supposed to take pictures of my family without there being a building behind them. I’ve tried to contact the management of the complex, but I’ve been unable to get a copy of the official policy or any response at all about my experience there.
Situations like this are an increasingly common problem for photographers. A few years ago, photographers who visited France found out that you couldn’t publish photos of the Eiffel Tower taken at night. That means even to put your vacation photos on your personal web site, you’d be asked to include the text, “Eclairage de la Tour Eiffel – Copyright Société Nouvelle d’Exploitation de la Tour Eiffel – Conception Pierre Bideau.”
Then there’s the Lone Cypress, a tree along California’s famous 17-Mile Drive. It’s probably the most infamous example of someone trying to exert ridiculous intellectual property rights. They must’ve made it sound like a good idea, though, because it seems that the idea of copyrighting trees is catching on.
Benjamin Ham, a photographer in Charleston, SC, is now defending himself for selling a picture called “Plantation Road.” Photos he took at Dixie Plantation in 2006 are now selling for thousands of dollars apiece. The plantation was left to the College of Charleston Foundation by John Henry Dick in 1995. They say Dick prohibited the sale of images of the property for commercial gain and that Ham is violating that.
The picture in question is of their “Avenue of Oaks,” a tree-lined drive leading to the plantation. If you think that sounds familiar, but you’ve never been to Dixie Plantation, it’s probably because there are oak-lined roads at historic plantation homes all over the South Carolina lowcountry, Georgia, and along Louisiana’s famed River Road. Sites that claim an “Avenue of Oaks” include St. Simons Island, GA; Boone Hall Plantation; Buckfield Plantation; Litchfield Plantation; South Boundary Road in Aiken, SC; and the aptly-named Oak Alley Plantation, just to name a few.
If it doesn’t make sense to trademark a generic term, then how can we consider it logical to claim a simple row of trees as proprietary?
In Canada this month, it’s about totem poles. You might guess that the creators of the 80-plus works of art in Duncan, British Columbia want a say in how photos of their works are used. But you’d be guessing wrong. It’s the city, without input from the artists, that is demanding you ask permission, again in order to “protect their copyright.” But if you listen to what the city has said about the situation, it’s pretty clear that, like the other cases, what it really comes down to is the city not wanting photographers to make money that they think they could claim instead, even if they hadn’t previously made any effort to do so.
But it’s not just a national or even international problem—it’s going virtual. Should you be allowed to sell someone a picture you took of the Sydney Opera House? And if so, should you be allowed to build that structure in Second Life?
Image Catalog, a stock photography web site, has attempted to deal with the issue of what photos it can accept by creating a list of places and companies that make these sorts of claims. Let’s play a game—2 points for each item on the list you’ve taken a picture of, a bonus point if you’ve posted it online. Half a point for each you’ve seen a photo of, particularly if it’s reasonable to suspect that it was published (print or web) without permission. Let me know how you do.
This is out of control. Stop telling photographers what they can capture, or soon you won’t be able to click a shutter without getting a signed waiver from everyone in the background, the owners of every building, the companies who made the clothes the people in the picture are wearing, and the manufacturers of every object in the picture. Good luck next time you take a shot of your buddies drinking beer at a baseball game.