Contributed by: Benjamin HO and Lenon ONG of the IPSA Core Team
In our previous editions, IPSA Updates #4 and #5, we demonstrated some ways you may possess a photo yet not own it due to copyright law. This occurs namely either :
- when someone else takes the said photo (and is therefore the author and owner of such photo, protected by copyright law; for elaboration, see IPSA Updates #4); or
- because the photograph contains a subject matter containing and therefore constituting a reproduction of a work protected by copyright, as observed in the Eiffel Tower’s night facade (for elaboration, see IPSA Updates #5).
In this final edition of our three-part series on Copyrights, we journey together to the other side of the Atlantic to introduce more exciting copyright dilemmas and exceptions!
Introducing the Hudson Yards Vessel in New York City (henceforth the “Vessel”), a newly-constructed, aesthetically pleasing building recently made open to the public on 15 March 2019 (see Photo #1 below). Given its impressive and unique design, naturally many of Vessel’s visitors take copious pictures with it, hoping to retain a memory of the structure with their phones. So it’s all smiles for the camera, right?
(Photo #1 – Credit: Benjamin Ho)
Well, you guessed it – no, of course, copyright law presents some interesting food for thought for the everyday photographer!
At its opening on 15 March 2019, all photographs taken at the Vessel did not in fact belong to its visitors. Unsurprisingly, many of the Vessel’s visitors were caught unaware of the Hudson Yards Terms & Conditions imposed by its operator, ERY Vessel LLC, upon admission. Under these terms and conditions, the fine print conferred onto the Vessel’s operator the intellectual property rights in all photographs (and other media forms) “depicting or relating to the Vessel” by way of an “unrestricted, worldwide, royalty-free, perpetual right and license (with the right to transfer or sublicense)”. These Terms & Conditions were not posted on the property grounds itself but are available online.
What do these all mean, anyway? These conditions effectively enabled the Vessel’s operator to claim ownership over any and all visitors’ photos of the Vessel.
(Photo #2 – Credit: Benjamin Ho)
Onerous? You bet! Naturally, these terms attracted much controversy within the community and IP lawyers, sparking a massive social media outcry. From the legal perspective, the relevant issue here is whether these Terms & Conditions were enforceable. Just think, for example: If owners of other prominent landmarks – such as the United States Army Air Forces which operates the famous Empire State Building, a quintessential icon of the New York skyline – adopted the same IP policy as the Vessel’s, one would find themselves not owning these photos despite taking them! This would conceivably be thoroughly unacceptable to most tourists, who simply and innocuously just desire to keep a picture for souvenir’s purposes!
The Freedom of Panorama exception
Thankfully, copyright law confers one notable protection over pictures taken in public: the Freedom of Panorama. This grants members of the public the right to reproduce photos of public artworks and architecture (such as monuments, bridges, statues, and buildings) without the need for any licenses.
Does this then grant exclusive rights to a photo taken of any building in public? What about the Hudson Yards Vessel, or the Eiffel Tower at night?
Foremost, the Freedom of Panorama exception provides the option for member states to have a freedom of panorama clause in their domestic copyright laws. Rightfully, this exception allows members of the public to take photos of beautiful buildings in public without fear of copyright infringement. However, this exception is not always available, as it is not mandatory for member states to adopt it in their domestic copyright laws (European Union Directive 2001/29/EC).
In France where the Eiffel Tower is situated, the Freedom of Panorama exception, in its domestic iteration, exists for reproductions and representations of architectural works and sculptures located permanently in public places, and carried out by physical persons, though it excluded any commercial use. Thus, vis-a-vis the Eiffel Tower’s night facade, the Freedom of Panorama exception generally applies though its scope may not extend to the Eiffel Tower’s lightwork, which is the artwork claimed to be infringed. However, in non-subscribing jurisdictions such as Italy and Greece, members of the public may be cautioned against taking photos of some public structures.
Turning back to the Hudson Yards Vessel, fortunately a less complicated solution prevailed. After much social media derision, the Terms and Conditions were amended in March 2019 to clarify that visitors would retain ownership of any photographs, text, audio recordings or video footage depicting or relating to the Vessel that they create. Today, the Terms & Conditions (last updated in September 2019) no longer explicitly provide for the vesting of intellectual property rights of any materials in the Vessel’s management. In any case, it appears the Freedom of Panorama exception, codified in 17 U.S. Code § 120(a), applies as the Vessel falls under the definition of an “architectural work”.
(Photo #3 – Credit: Benjamin Ho)
In closing, to answer the questions posed at the start – whether one could find himself not exclusively owning a photo taken in a public space – yes, it could be very much possible by the operation of both copyright law and contract law! Hence, it remains imperative for legally savvy travellers to always keep in mind to check whether they own the copyright of their photos, especially if they wish to monetize their photos!
Of course, one cannot expect the average citizen or traveller to constantly be conscious of whether a country has received the Freedom of Panorama provision into domestic legislation while innocuously taking a picture during their leisurely travels.
In any case, as a workaround, should one ever find themselves having infringed the copyrights to an artwork, there exists one final, creative option: cropping out the entire infringed artwork from the photo (see Photo #4 below, featuring an infringement-free depiction of Danish Statue of the Little Mermaid)! Doing so often leads to very interesting, imaginative pictures and very well offers a novel medium of creative expression!
(Photo #4 – Source: https://expertphotography.com/freedom-of-panorama-photography/)
Editorial endnote: This article (IPSA Updates #6) marks the end of our three-part series on copyright law and photography. Concurrently, the IPSA Core Team is on the constant look-out for interesting IP-related content and welcome all content suggestions or article contributions! Feel free to reach out to us at email@example.com.
In the meantime, happy photo-taking!