US copyright decision limits protection of building artworks

Photographers and photo libraries will welcome the decision last week by the US Court of Appeals that artworks forming part of buildings are covered by the same copyright exemption as the buildings themselves.

Andrew Leicester, an artist known for large scale public art, created four streetwall towers and other artistic works for the 801 Tower in downtown Los Angeles.  In 1994 the 801 Tower became the Second Bank of Gotham in the movie Batman Forever.  Leicester sued Warner Bros, claiming that pictorial representations of his streetwall towers along with the 801 Tower infringed his copyright in the towers as sculptural works.

American law on building photography is roughly similar to UK law. Buildings are protected by copyright, but the Architectural Works Copyright Protection Act of 1990 limits the rights of copyright owners.  ‘The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.’

Leicester argued that his towers were separate sculptures which should be given independent protection and should not be treated as part of the building as a whole.  The court rejected this, finding that the towers were ‘part of the functional and architectural vocabulary of the building’.

To take another example, gargoyles and stained glass windows are likely to be copyright artistic works, but you can photograph them without infringing copyright if they form part of a building.

The decision was by a majority of 2-1.  The dissenting judge felt strongly that protection was available for artistic works that were ‘conceptually separate’ from buildings and that depriving artists of protection if their works are part of an architectural work was a ‘drastic change in the law’.

The UK has a similar, rather wider exemption for photographs of buildings. Section 62 of the 1988 Copyright Act allows photography and filming of buildings irrespective of their location.  The same also applies to models for buildings, sculptures and works of artistic craftsmanship, where these are permanently situated in a public place or in premises open to the public.  Buildings include ‘any fixed structure’ along with parts of buildings or fixed structures (a broad definition which may even extend to landscape gardens).

There are technical legal difficulties with the UK exemption, but for the moment at least it does not look as if UK building copyright owners are about to make any concerted attempt to levy copyright fees for photography and filming.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.