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(Mis)understandings of the words “intellectual property”

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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.

23 responses to “(Mis)understandings of the words “intellectual property””

  1. V Morrison says:

    Excellent article!

  2. Bob Robertson says:

    One of the “misunderstandings” of Intellectual Property is that it is a manufacturered term, created by those who benefit from the existence of artificial grants of monopoly privilege.

    Here are four articles on the subject of intellectual property that folks might find of interest.

    http://www.mises.org/story/2632

    http://www.mises.org/story/1763

    http://www.lewrockwell.com/blog/lewrw/archives/001565.html

    http://www.lewrockwell.com/mcelroy/mcelroy17.html

  3. central texas says:

    Enjoyed the post. Because I participate in a number of image and photography sites and discussions, there is one more point that I think needs to be made.

    While photographers argue for their freedom to photograph without restriction they seem to be running a close second to the RIAA and MPAA in terms of demanding absolute control over the images that they create. That is, they misunderstand copyright every bit as frequently as those trying to claim “tree IP”. To me, this constant drone of “MINE! MINE!” helps to foster the social attitude that everything is property and subject to the proprietary whims of “the owner”.

  4. Bob says:

    That’s why I agree with Free Software Foundation guru Richard Stallman when he says that we should not accept this term “intellectual property” at all.

    It’s simply used by corporate interests as a kind of “catch all” phrase for trademark, copyright and patent laws…laws which were established for entirely separate purposes and with totally separate legal traditions…and then tries to get us to accept that these things have something in common with physical property.

    Anytime someone uses the term “intellectual property” we should challenge them on it…because its a meaningless term.

  5. Arnt Karlsen says:

    ..you were threatened “with police intervention”.

    ..consider a lawsuit. Better still, act upon it.

  6. Tanya says:

    >>That is, they misunderstand copyright every bit as frequently as those trying to claim “tree IP”.

    I don’t agree. I am a photographer, and I think there’s a huge difference between a tree that’s grown somewhere and a work of art, like a photograph of that tree.

    I am a professional photographer, and if I create a work of art, then I want to decide what happens to it.

    Don’t get me wrong, I do not in the least support the methods groups like the RIAA or the MPAA are using, ecpecially, since what they are doing is hardly ever for the benefits of the artist.

    But being an artist myself, I think it’s a legitimate wish to keep some control about what’s happening to your work.

  7. Sander Marechal says:

    >> I am a professional photographer, and if I create a work of art, then I want to decide what happens to it.

    Read “central texas” post again. He’s talking about “tree IP” a.k.a. photographers claiming that someone else cannot take a similar picture as they have taken. You’re free to control your picture however you want, but don’t tell us what we can and cannot photograph ourselves.

    I think the point that CT is trying to make, is that photographers seem to misinterpret that copyright only applied to your photo itself, not to the subject that is photographed. If I take a picture of the same subject that you did, under the same conditions and with similar lighting, I will end up with a picture similar to yours. Howerver, it’s a separately created work of art and thus not infringing on your copyright. The only way I’d violate your copyright is if I actually used your picture (e.g. taking a photo of your photo).

  8. BrightByte says:

    Thank you for this illustrative rant about the insane mess “intellectual property” is, especially for individuals creating and publishing content on their own. It gets even worse in the context of online publishing, since it becomes completely unclear which laws of which jurisdiction apply.

    If you want more of this madness, have a look what Wikimedia Commons is going through trying to be a free media repository, especially with regards to the concept of “freedom of panorama” and other stuff like design patents, fair use, trademarks, derivative work, and copyrightability . Click the “discussion” tab on each page for the full experience.

    PS: useless fact: did you know that “uncopyrightable” seems to be the longest (english) word that and has no letter twice (and it also contains all vowels)?

  9. Peter Rock says:

    No need for me to iterate what Bob already said (comment #3). So I’ll just say, “I agree.”

  10. John says:

    Start with your Government Bob(#3) and Pete(#8)

  11. BrightByte says:

    The two URLs missing in my comment (#7) are: http://commons.wikimedia.org/wiki/Commons:Licensing and http://commons.wikimedia.org/wiki/Commons:Freedom_of_panorama

    Have a look, and click the “discussion” tab for more.

    Anyway, i want a preview function for comments, or at least some syntax hints, so i don’t screw up so badly next time :)

  12. Jim Baldwin says:

    Nice read. Thanks.
    Jim
    PS: Please help me get the word out about http://LetHerIn.org Thanks again.

  13. Cyde Weys says:

    This is getting absurd. It has happened to me too. I was in a commercial shopping mall in Boston — kind of up-scale, but nothing revolutionary — and a security guard interrupted me while I was taking pictures of the architecture using a point-and-shoot pocket digital camera.

    What the hell is going on in society? How did we ever let it get this bad? Unless there are proprietary trade secrets involved, e.g. breaking into a rival laboratory and photographing the lab journals, I don’t see how it makes sense to prohibit taking pictures anywhere you’re allowed to look.

    This issue is all going to become moot in the near future when the human body and technology become more tightly integrated. We already have cyborgs walking amongst us (most of them, admittedly, as some form of medical treatment). And we already have electronics that interface directly with the brain. How long until someone figures out a way to digitally record what your eyes see? Or implants a camera? Then what will these protectors of “intellectual property” do?

  14. Jot says:

    I own the term “intellectual property” is is my intellectual property. No one is allowed to use the term to prohibit anyone from taking pictures in public spaces.

  15. Sandra says:

    I say, “Keep your laws off my art!” Molecularly speaking it is IMPOSSIBLE to recreate time. A photographic image captures an exact moment in time and no two images will ever be exactly alike by any two cameras, even if the picture is taken at the same moment. They can’t be in the same physical space. Therefore each and every photograph is a completely distinct piece of proprietary creation and should be considered as such. Furthermore, no human intellectual property can or should be able to claim proprietary rights over an item existing in nature, which again, continually changes at some level over time. Furthermore, images in and of themselves are just that. It’s what people do with images that subject them to this rhetoric.

  16. Maddog says:

    This just goes to show what happens when “intellectual property” goes overboard. The reason IP is perotected is so that those who own it are encouragedf to share it with society. But now moneygrubbers are doing the exact opposite. Thuis madness has got to stop.

  17. Nicu Buculei says:

    A somewhat related story: here in my country we have some open-air museums and at the entrance you have to pay a tax to be allowed to take photos inside them.
    The things is, the tax has two levels: one for amateurs and another for professionals. The question is: if I have a SLR and post the photos on my blog (there I use AdSense), am I amateur or professional?
    And yet another discrimination I saw a few years ago at a historical monastery: a smaller tax for Romanians and a larger one for foreigners.

  18. Ruth Suehle says:

    Nicu – That’s really interesting! I’ve never encountered that in traveling, but then, I’ve never been to Romania. I would be interested to hear what their answer would be. They’re making an overt dilenation where many places here make the same judgment without the written rule. If your equipment is too “professional-looking,” you’re more likely to be stopped. But the truth is, I’ve gotten some of my best pictures with a basic Kodak EasyShare.

    Here in the US, you generally are prohibited from taking pictures in mueseums. At the Rock ‘n Roll Hall of Fame, they say that it’s because of the terms of the agreements with the musicians who have donated their stuff to the museum, but as you can tell from the article, they believe in “what’s mine is mine.”

    At art museums and historic homes, it’s usually said that repeated flash photography will degrade the paints. I’ve seen mixed information about that, so I can’t really say to what degree it’s true. It seems logical, and yet, by banning flashes and tripods in a museum where everything is long in the public domain, museum gift shop sales are presumably increased. I will note that when I was at the Louvre, they allowed photography, even flash photography. (I’ve read that they now allow photography only in certain areas to keep traffic flowing better.) If it’s good enough for Mona Lisa and the Venus di Milo…

  19. Nicu Buculei says:

    The Voronet Monastery (http://en.wikipedia.org/wiki/Voronet) is called “the Sistine Chapel of the East” and it is an UNESCO World Heritage Site; the entrance tax was like this: http://picasaweb.google.com/nicubunu/TheWorldAroundMe/photo#5124523515655789522 photos allowed only at exterior and taxed with 2 Euros for film cameras and 3 Euros for digital cameras.
    The footnote states “taxes [...] are a contribution for the restoration process”.

  20. sammy martin says:

    We have become a stupid people. Full of greed. But we only have ourselves to blame. In America for now a least, jury are still selected from the masses. If, people would stop finding in favor of such things, then these threats etc. would go away.

  21. Ben Ham says:

    I have just come across this article and thought I would comment on it. The lawsuit filed against me by the College Of Charleston Foundation mentions nothing about the claim of rules established by John Henry Dick for Dixie. This was information provided by the Foundation for the article about the suit. We asked to be provided with this documentation from the beginning. It was never produced. The suit claims I entered the property without permission stole an image of their trees and am damaging them by the sale of said image and the continued sale of said image. The property was placed in the Lowcountry Open Land Trust by Dick which prevents the development of the property and also has a tax incentive for the protection of the property. Mr. Dick was an artist and illustrator. I have been told by his friends that he would have loved my image. The Foundation threatened me with several actions for 10 months before filing suit. From the beginning I have been offering them a portion of the proceeds or an out right donation of 5 large framed pictures for a charity auction to raise money for their plans for the property. All refused. I give quite a bit of work to charity and it always brings a very good sum.

  22. Ruth Suehle says:

    Ben–thanks so much for contributing your firsthand information on the case. I’ve been checking periodically to see if I could find any updates on the case. I think it’s a beautiful image as well, and both as a photographer and former lowcountry resident, I’m pulling for your side!

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