Focus On: Copyright (a cautionary tale)

Let me start out by saying, “I am not now, nor have I ever been, an attorney, lawyer, barrister, solicitor, Juris Doctor or a member of the legal profession in any form anywhere on this, or any other planet in or beyond the known universe.”  The closest I can come to that designation was that course in Business Law I took one semester all those years ago.  

If that is all a bit too subtle, let me further state that I am in no way qualified to render legal advice in any form, and any interpretation of the following as advice of any kind, legal or otherwise, is not only wrong, it’s wrong-headed and totally ill advised.  The following is offered for informational and entertainment purposes only.

“Are you not entertained?!”

Any reader that reads beyond this point right here… F E ... does so at their own risk and by so doing indemnifies the author, Photographers Of Etsy, Etsy and the publishers of this and any other blog against any damages, real or imaginary, incurred, or believed to have been incurred by taking any action or inaction inspired by having read or ignoring this article.

There, that should do it!

Some months back, I think it was March of this year, I was talking to Randy Roberts of rrobertsphoto via convo, and he brought up an interesting situation he found himself in.

Three Story House

Randy does quite a bit of work related traveling, and when he’s off the clock in these far flung climes, he takes out his camera and puts it to good use recording what he finds in his viewfinder.  On this one occasion he was in a place called Kincardine, Ontario where he captured an image of an old Victorian house and, well…I’ll let him tell it:

“…for the first time since I started taking photos, I was told that one of my photos violated someone's copyright and any attempts to display or sell the photo would result in legal action. The photo was taken in Kincardine, Ontario -- a historic old house that is locally famous for being haunted -- photographed from a public street. After posting the photo on my Etsy site, I received the two emails below:

" ‘you have been warned to cease any and all useage of the name regarding Madisons Haunted Inn Kincardine Ontario, as the owners of Madisons Haunted Inn...the name is a registered existing to date crown corporation. if you continue to use the name Madisons Haunted Inn or Madisons Inn in any manner, we will commence legal action against you

Regards

Christopher Campbell CEO Madisons Inn Kincardinne

Owner of Business Name of Madisons Haunted Inn Kincardine’

" ‘hello

this email is to advise you to cease selling any and all pictures of madison's haunted inn located in kincardine ontario, i have strict copyrights to that location as the previous owner...and if you continue to sell any further pics of the property i will commence with legal action against your sales..also i will ask the court to review any and all of your sales through the past years, and you will be liable to pay to us the owners any and all proceeds from those sales..we ask you to govern yourself accordingly’”

My response to Randy follows:

“I'm not a lawyer, and avoiding the issue may be the best/easiest course of action (it's probably what I would do), but I've been doing some research, and it's entirely possible that Mr. Campbell is blowing smoke up your skirt.

"I searched the Canadian Intellectual Propery Office website for any reference to copyrights, patents, trademarks or industrial designs for "Madisons Haunted Inn", "Madison's Haunted Inn" or any part thereof and came up empty. ( www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00003.html )

"I also found an interesting forum thread ( 

http://www.thephotoforum.com/forum/general-shop-talk/145723-building-architecture-copyright.html...  ) that seems to address your exact situation, and from what I'm gathering, while it is possible to copyright a building's image, that copyright only serves to prevent anyone from using that building's design to construct another building. As a photographer, you own not only the photograph, but the copyright to the photograph and can do with it what you will.

"Again, avoiding the conflict may be the best and easiest way to go, but it sounds to me that Mr. Campbell is full of beans. I would also question the validity of a "cease and desist e-mail". A letter from his solicitor would be more convincing.”

Kincardine House

Randy subsequently removed any reference to “Madison’s Haunted Inn” from his shop.

The conversation that Randy and I had was geared toward the possibility of me addressing this issue on my own blog, but it turned out to be one of those things I didn’t get around to, and I didn’t think much more about it until...

A couple weeks ago I received a similar message from a fellow Etsian who apparently joined Etsy for the express purpose of sending me the following convo:

“Hi there,

I am writing on behalf of the Fremont Arts Council and Steve Badanes, Lead Artist/ copyright holder of the Fremont Troll. I came across this photo you are selling of the Troll and I wanted to let you know that under the terms of the copyright, the Troll's image can not be sold for any reason without express written consent of the Fremont Arts Council and Steve Badanes. Most people are unaware that this (and most public art) is copyrighted and has limitations on how the image may be used in a commercial capacity. At this point all we are requesting is that you please remove the this (sic) (and any other) Troll's images you are selling in any capacity.

Regards,

Corey"

Good Lord!  I’m not trying to filch someone else’s intellectual property!  I meant to do only two things: 1) Promote a Seattle landmark, and 2) Create a portrait of the Troll, and OK, maybe make a couple bucks in the process.  But the thing is, and I don’t know how your balance sheet balances out, but after printing expenses, shipping expenses, Etsy and PayPal fees, gas, equipment and anything else you can imagine, never mind my time, I’m losing money hand under fist on this endeavor.  Now, here I’ve got someone telling me I’m stealing from them and if I don’t change my ways, I’ll have some legal expenses to add to my balance sheet!

I removed the offending image and replied with a short apology.

Fremont Troll

Then I got to thinking and decided to do a bit of research.  I discovered some interesting things that have direct impact on my situation, Randy’s situation, and who knows, maybe your situation as well.

First of all, and any Intellectual Property lawyer worth their salt will tell you the same thing, the copyright laws are very complicated; and, why wouldn’t they be, they were written by lawyers!

As you might imagine, just what the copyright laws are depend on where you were standing when you were shooting whatever it was you were shooting.  For example, the copyright law regarding architectural structures is amazingly similar in both Canada and the U.S.  

Section 32.2(1) of the Canada Copyright Act states:

It is not an infringement of copyright

[ . . . ]

(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

     (i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or

     (ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

In comparison, Title 17 Section 120 of the United States Code states "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."

As you can see, it is not a copyright infringement in either Canada or the United States to photograph an architectural work.  But, while Canada specifically includes sculpture in their statute, the United States makes no mention of it, thus neither specifically allowing nor disallowing the making of photographs of sculpted works.  If that’s not confusing enough for you, there are court decisions coming down squarely on both sides of the issue!

As photographers, copyright law is something each and every one of us has a stake in.  But, few, if any, of us really understand it, and fewer still are experts in it.  It’s safe to say that the opposite is probably true. 

Other aspects of copyright law may get some coverage in future editions of this feature, but until that happens, here are some links with some information on the subject you may find interesting:

http://seattlest.com/2010/02/03/dance_steps_on_broadway_scupltor_su.php

http://www.copyright.gov/records/

http://www.uspto.gov/

http://www.wipo.int/sme/en/documents/ip_photography.htm

http://www.photoattorney.com/?p=1801

http://www.photoattorney.com/2008/03/court-finds-opposite-photographs-of.html

http://www.photoattorney.com/?p=268

http://www.danheller.com/biz-trademarks.html

http://www.law.cornell.edu/copyright/copyright.act.chapt1a.html

http://www.thephotoforum.com/forum/general-shop-talk/145723-building-architecture-copyright-2.html

http://laws.justice.gc.ca/eng/C-42/page-3.html

http://www.copyright.gov/title17/92chap1.html#120

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PhotoGrunt is Steve Raley, a photographic documentarian (NOT A LAWYER!) from Seattle, Washington.  He captures images wherever he goes, and he  frequently even uses a camera.  His work can be seen on his website, blog and his Etsy shop.