Contributed by: Benjamin Ho and Lenon Ong of the IPSA Core Team
Photos by: Benjamin Ho
Preface: Happy Lunar New Year from IPSA! While you were busy cooking up some delicious steamboats and festive dishes, IPSA authors Benjamin and Lenon too, were busy cooking up a spicy article about Copyrights for your festive reading pleasure! Do read on to find out in this article, the second of a three-part series about copyright law, about why we ought to pay more attention to copyrights, and IP at large!
Copyright and photo-taking: a recap
In the previous edition of IPSA Updates #4 (the first of a three-part series about copyright), we learnt about how you may, as a subject of a photo or even as the owner of the photo-capturing device, not own the said photo taken of/for you, if it were taken by someone else.
Now, we charter into murkier and more contentious intellectual (property) waters.
Imagine this: you are walking down the streets of New York by day, or Paris at night. You walk past the famous, iconic Parisian landmark, the Eiffel Tower (see accompanying pictures), or the famed, recently-opened Hudson Yards Vessel (to be featured in IPSA Updates #6!). Next, whether for good memories (or unabashedly, #forthegram), you may wish to take a picture of the monument or one with it. You then proceed to snap the said photo or take a selfie with it. Applying what we have learnt in the previous article, you should rightfully own the photo because you (and not anyone else) took the photo. However, will you always be the rightful author and owner of the photo? We recall that copyright law gives the original author an exclusive right to its sale and distribution for as long as they live, plus a fixed amount of time, depending on the laws of the jurisdiction in which the copyright is being enforced. This is assuming there is no infringement of another party’s copyright.
Well, there is more to this than meets the eye.
In fact, one could potentially expect copyright claims by the Société d’Exploitation de la Tour Eiffel (henceforth, “Société”), an entity which manages the Eiffel Tower.
Copyright of the Eiffel Tower’s Likeness, Design, and Structure (by day)
First, the Eiffel Tower’s likeness, design, and structure were protected by copyright until 1993, 70 years after the death of the French civil engineer and architect, Gustave Eiffel, in 1923. Any subsequent images of the Eiffel Tower would have entered the ‘public domain’ and thereby not attracted any contentious claims vis-à-vis copyright. This should technically mean that you can take, reproduce, and/or sell as many photos and videos of the Eiffel Tower as you want.
Copyright of the Eiffel Tower’s Light Show at night
However, at present, any photos or videos taken of the Eiffel Tower at night are subject to the terms provided by the Société, that “its various illuminations are subject to author’s [i.e. the Société’s] rights as well as brand rights” and that “[u]sage of these images [are] subject to a prior request from the [Société]”. This is because the Société asserts a claim that the Eiffel Tower’s lighting is protected by copyright as the tower’s nighttime light show was introduced in 1985; the Eiffel Tower’s light show is still protected under French copyright law as an artistic work.
Thus, to be free from any copyright encumbrances, one ought only to take, reproduce, and/or sell photos and videos of the Eiffel Tower during the day and not at night..
Here, the main legal question, still left unanswered by international copyright law, is whether the said light scheme operated by the Eiffel Tower is a protectable work of art (pursuant to EU copyright law and the Berne Convention, the international copyright treaty governing and protecting works of art and expression which most nations are party to), or whether it is part of the main structure whose copyright expired in 1993. If it is the latter, a night photo of the Eiffel Tower does not trigger any copyright issue. Nonetheless, and fortunately, however, for the average person, the Berne Convention offers one useful carve-out: night photos or videos of the Eiffel Tower can still be taken solely for personal use and enjoyment.
The litigation costs and the public relations nightmare which the Société would incur (should they choose to actively enforce their copyright of the Eiffel Tower’s lightwork) appears redundant at first glance. It is likely that a tourist, who chooses to share a night photo of the Eiffel Tower onto his/her social media platforms will not elicit any serious legal action. On the other hand, a street vendor selling postcards of the Eiffel Tower at night on the streets of Paris may attract copyright enforcement by the Société and potential legal liability.
For the observant, and given the tenuous nature of this copyright issue, you may note that IPSA and the authors of this article have cautioned against depicting photos of the night view of the Eiffel Tower – gorgeous as it may be, as the centerpiece of the renowned City of Lights (appropriately and ironically so named). Instead, we have posted litigation risk-free pictures of the Eiffel Tower by day for your enjoyment!
Editorial endnote: We hope the past few editions of IPSA Updates have piqued your interest in IP law, and has been exciting to read just as it has been for us to write and publish!
If you’ve enjoyed this series about Copyrights and their relevance to our daily lives thus far, do stay tuned for the final component of this three-part series (IPSA Updates #6), where we raise other interesting issues and examples surrounding copyright!