Legal question about property/houses/buildings in photo

[John 2]

John, I can only give you a view under English Law. There are similarities between English law and US law though, so much so that when I was writing contracts with US companies, jurisdiction under the laws of NY, NY were an acceptable fall back.

What we are talking about is intellectual property rights of which copyright is just one. There is such a thing as a "User Right" as in if you take a photograph, you automatically own the copyright but you can grant a user right to a second party. That can be open ended or have conditions attached to it e.g. they can use it for personal use but not for commercial purposes. You can of course sign away your rights under contract for a consideration.

The same principle can be applied to the right to exploit the commercial potential of say a landmark building. You may well be able to photograph the building and you will the owner of the copyright associated with the image itself but you may not be free to exploit the image for commercial gain because that right belongs to the owners of the property. Hence the need for a property release. Equally however, they can't use your photograph because you own the copyright.

There are (at least) two other considerations though. In making your image, you might be breaching someone's privacy. Under English law they would have to sue you in a civil court for that if they wanted redress. In France though as an example, I think you might be breaking an actual privacy law. I'm not sure what the situation is in the US. The second consideration arises from the fact that most countries have statute laws preventing you from actually taking photographs (not just exploiting them) of sensitive subjects. These include the obvious like the military, it's equipment and premises but in the UK the Official Secrets Act also covers things like nuclear power stations and the premises of defence contractors.

It's a mine field as I said before but now you know why lawyers live in big houses. Hope this helps.

[Manfred M]

All I can suggest is looking at a local television news report or a local newspaper in many of these countries. Funny how these items in question appear in these media without so much of a "boo" from the supposed copyright holders.

I see a number of errors and omissions in the article (and no, I am not a lawyer, but have worked closely with corporate lawyers dealing with intellectual property issues, so have a better idea about the subject than many lay people).

1. Stating what a specific law says is insufficient. Law is usually supported by regulations that contain the specifics of how the law is to be enacted. There could be other laws that override the specific law in question. Even more importantly, if there have been challenges to the law, either through the courts or quasi-judicial bodies, these rulings will provide and interpretation of how the law should be read; but the law itself would not be re-written. These judgements become annexes that that need to be used in applying the law in the future. These are obviously not covered in the very simplistic article mentioned.

2. The idea that the architect owns the rights to the designs is absolute fiction. Any project I worked on dealing with intellectual property had a clause in it that all intellectual property (IP) rights belonged to the company buying the service; this included works by architects, engineers, industrial designers, photographers, etc. after these specialists had been fully paid for their work.

A company would never leave IP in someone else's hands. Can you see any company not doing this? Any future modifications to the building could not be carried out without the original architect's approval, and no company would ever tie their hands in this way. Going back to the architect and asking for permission to photograph a building he has turned over the rights to makes absolutely no sense.

3. The Berne Convention itself has no real legal status other than providing a framework on how specific laws should be drafted / updated in signatory countries. Countries can sign the convention and do not necessarily ratify it. Even if ratified, the country in question has to write its own laws to incorporate what the convention agreed to and the level of compliance will be different depending on the exact wording of the local law.

[John 2]

All I can suggest is looking at a local television news report or a local newspaper in many of these countries. Funny how these items in question appear in these media without so much of a "boo" from the supposed copyright holders.

In the UK Manfred, journalists are exempted from some of the provisions that restrict you and I. They claim a "public interest" defence i.e. it is in the public interest for them to make use of whatever is being disputed. This week, after the failure to prosecute a journalist for bribing a public official, the Public Prosecutor's Office has dropped all other pending cases. What applies to one, applies to all - or not as the case may be.

[Manfred M]

John, fortunately for you or I, we both live in countries with a very liberal interpretation of what can be photographed.

As long as pictures are taken from a public space, there are very few restrictions on what can or cannot be photographed, and that includes privately owned buildings. The simplified view is that if a person can see it standing in a public place, it can be photographed. This includes other people too; as they have no additional right to privacy when they are in a public place.

Step onto private property, and the rules certainly change, and the owner of the private property can certainly prevent you from taking pictures while standing on his or her property.

Now that doesn't mean you won't be hassled. I know of a case where where a photography class was in the downtown area and had the police show up when they took pictures of the American Embassy in downtown Ottawa. While the police was probably overstepping the law, who is going to argue with a number of police officers?