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.