Copyright is often a big question in architecture photography. Can you photograph that building? Can you share those images? What exactly is copyright in architecture photography?
This article has all the answers you might be after. Whether you’re an architecture photographer, a street photographer or just curious, this is the article for you.
What Is Copyright in Architecture Photography?
U.S. copyright law protects architecture. More specifically, 17 U.S. Code § 102(8) protects it. Copyright law changed in 1990 to include these architectural copyrights.
Ok, but what does this mean for you and your photos?
It means that the law does not apply to pictures of buildings created before December 1, 1990. Architectural photos of such works are photographable and reproducible without needing permission.
As for post-1990 buildings, the law only covers private property. Buildings visible from a public space are not covered.
The copyright owner of a post-1990 building (the architect, developer, or building owner) cannot prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the building if it’s either located in or visible from a public space.
See 17 U.S. Code § 120, which covers the scope of exclusive rights in architectural works.
Basically, photographers need only concern themselves when photographing private property, without permission, after 1990. This may result in a copyright infringement claim.
What About Architectural Interiors?
The law does not distinguish between architectural interiors and exteriors. They are both covered by the same law.
Thus, an interior, viewed from a public place, such as a glass conservatory, can be photographically reproduced. This is, as long as you are not violating invasion of privacy laws.
As for non-publicly viewable interiors, the determining factors will be:
- whether the interiors are sufficiently original to merit copyright protection;
- what elements (unprotected) are functional elements whose design or placement is utilitarian; and
- whether the photographs of the interior reveal enough information to infringe the architectural plans or designs.
Showing a kitchen or living room is unlikely to cause any infringements. The owner, architect or designer need to show that the combined effort of the images infringes elements of the design.
The only issue that could arise is from broken contracts. If you agree not to post, share or sell images without permission from the owner and then do so, you could face litigation.
Written permission from the owner is necessary to ensure there is no confusion.
Photographing a property’s interior space that includes artwork is not a problem. They are generally regarded as integrated sculptural elements.
These are photographable and reproducible, along with the building.
But. If the building contains a separate area, such as a mural or garden sculpture, you need specific permission if they are protected.
This is particularly true of close-ups, so ensure you have all the important info before you sell it separately.
Can Property Owners Use Trademark Law to Prevent Photos?
Trademark law is another set of rules that photographers need to consider. Some building owners have claimed their buildings fall under trademark law.
These are down to appearance, especially when connected to the sale of goods and services.
In order for a trademark owner to stop you from reproducing a photograph, the following would need to be true:
- the building would need to have an identifiable, distinctive appearance
- the building would have to be publicly associated with certain goods or services
- your use would have to be commercial (not editorial)
- your use would have to link to an offer or endorsement of similar goods or services
For example, the Hotel Taj Mahal Palace trademarked the exterior of their hotel in 2017. This means that photographing it and sharing the image could land you in hot, illegal water.
Saying that, using a trademark law claim has not worked well for the trademark owners. So, you might not need to worry about it.
After all, many photographers capture images of The Eiffel Tower, Sydney Opera House, and the Empire State Building. They are more concerned with corporations that use huge advertisements.
If you are an interior, exterior or architectural photographer, you may find our What Is a Property Release Form and When Do You Need One? article useful.
A landmark case concerning selling photographs of modern buildings is Rock and Roll Hall of Fame v. Gentile, 1998.
A photographer was sued for selling posters featuring the “unique building design trademark” of the Cleveland landmark. The photographer won on appeal.
we agree that the record before us does not establish a strong likelihood that Gentile has made an infringing trademark use of the Museum’s name or building design …
— Rock and Roll Hall of Fame v. Gentile, 1998, Opinion II 
|Case Name||Citation||Court||Year||Copyright Issue|
|Guillot-Vogt Associates, Inc. v. Holly & Smith||848 F. Supp. 682||E.D.La.||1994||Architecture|
|Landrau v. Solis Betancourt||554 F. Supp. 2d 102||D.P.R.||2007||Architecture|
|M. Arthur Gensler, Jr. & Associates, Inc. v. Strabala||:2011cv03945||N.D.Ill.||2012||Architecture|
|Robinson v. HSBC Bank USA||3:2010cv01494||N.D.Cal.||2010||Architecture|
|Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc.||55 F. Supp. 2d 1113||D.Nev.||1999||Architecture|
|College of Charleston Foundation v. Ham||585 F. Supp. 2d 737||D.S.C||2008||Architecture|
|Gaylord v. United States||595 F.3d 1464||Fed. Cir.||2010||Art, Architecture|