At a recent training seminar a colleague from Keltie and I presented an overview of patents, trade marks, designs and copyright to an audience of in-house lawyers. As I’m a patent attorney and my colleague is a trade mark attorney we were ready for any questions that could be thrown at us from the fields of patents, designs and trade marks. Copyright, not so much maybe. We obviously had the basics covered and knew the details of some recent cases like Meltwater. However, anything slightly off track could have the potential to cause problems.
Nothing like that would happen, would it? Enter Sod’s Law and a question about taking photographs of a building….
I encounter the following two questions from friends and family occasionally and they cropped up again in the seminar. I think our answers at the time were roughly on message but here, following a subsequent discussion with K2 IP’s Yasmine Hashim (who we really should have invited along to the seminar!), are some more complete answers.
1.If someone takes a photograph of a building (e.g. the Shard) are they infringing anyone’s copyright in the building?
No. Buildings may be protected by copyright (assuming they are not too old) but there is an express exception to copyright infringement under the CDPA 1988 which allows photographs or indeed a film to be made of the building. Section 62 provides that “copyright in such a work will not be infringed by a) making a graphic work representing it, b) making a photograph or a film of it; or c) making a broadcast of a visual image of it”. Section 62 also allows such photographs, films etc to be issued to the public (eg by selling or otherwise publishing) without infringing copyright. (NB Although there is no copyright issue, in some cases permission may be required to use the photograph eg in advertising under the Committee of Advertising Practice (CAP) Code).
2. More generally, how does the inclusion of copyright material into a photograph work? Is it based on the amount or prominence of the copyright work in the image or perhaps the intent of the photographer?
In addition to buildings, section 62 CDPA 1988 also provides an express exception to copyright infringement in relation to photographs of certain specific works (that is sculptures, models of buildings and works of artistic craftsmanship) permanently situated in a public place. This exception is quite narrow and does not apply to paintings or literary works.
However, a copyright work can be included in a photograph if such inclusion is incidental (s 31 CDPA 1988). What amounts to incidental inclusion is not defined but is generally interpreted very narrowly. So if a work is deliberately photographed it is unlikely to be regarding as incidental. The exception may apply if the copyright work just happened to be in the background and/or the photo is only of a part of the copyright work.
Yasmine Hashim/Mark Richardson 5 November 2014
Another common question: what about taking photographs of people? Is there anything to stop you taking photographs of people – I know that there isn’t a general privacy law in the UK but that there is ECHR….
As a general rule you can take photos of people (including children) in public places provided you do not harass them in the process and there is no breach of the peace or national security. However problems arise if the person is well known and you use the photograph to sell or advertise something which could give rise to an action in passing off (eg Rihanna versus Top Shop) or if other information is provided that may identify the person which would be a breach of the Data Protection Act.
Stumbled across this article – http://www.breitbart.com/Breitbart-London/2014/11/05/EU-Buildings-Photography-Law. It suggests that although the UK has implemented the relevant exceptions from the Info Soc Directive into UK law (as the article points out), the situation is not the same in other parts of Europe including France and Belgium.
Can Yasmine confirm?
Interesting part of the law.
Yes the UK implemented the Info Soc Directive into UK law when it passed the UK Copyright and Related Rights Regs 2003. This amended existing copyright law to the extent necessary to comply with the Info Soc Directive. I can also confirm that a number of other Member States including France and Belgium did not and have been referred to the CJEU (see http://www.aepo-artis.org/pages/59_1.html )
Interesting read all round. Working as a VFX artist would the exemption of section 62 apply to VFX creations of buildings like the Shad for use in a move or commercial?
How does it work for government or official buildings. one of my photos has a coast guard building in the background. The photo was taken from the beach and the building is in the background of the image, and unless you know it is coast guard you wouldnt know as its not clear from the image. can that be lawfully taken and sold individually or as part of a collection in a photo book for example. ?