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Field guide · Part 2 of 13

The Building Itself as a Copyrighted Work

5 rules on the building itself as a copyrighted work for architectural and real estate photographers, each with its source.

Educational, not legal advice. Every rule below carries its source and a confidence level, because some of this is settled law and some is contested. The ones marked contested need a lawyer's judgement on your facts, not a rule of thumb.
Rule 6Surprising

Photographing a building you can see from a public place is not copyright infringement, period.

The architect’s copyright in the building design does not include the right to stop photos of the constructed building visible from a public place.

The misconception: “The architect can stop me from shooting or publishing their building.”

Source: 17 U.S.C. 120(a), the pictorial representations exemption, enacted by the Architectural Works Copyright Protection Act.

Confidence: Very high for exteriors and public-building interiors; the statute’s text is explicit. Not contested for exteriors.

Rule 7Surprising

Buildings substantially completed before December 1, 1990 have no architectural-work copyright at all.

The AWCPA is not retroactive, so a pre-1990 building’s design carries no separate architectural copyright to worry about.

The misconception: “All notable buildings are copyrighted.”

Source: AWCPA, Pub. L. 101-650, signed December 1, 1990; protection covers works created on or after that date, and buildings substantially completed before it are not covered.

Confidence: Very high. Not contested.

Rule 8

“Buildings” means habitable structures, so bridges, dams, and standalone kiosks are not protected architectural works.

The Copyright Office limits architectural works to humanly habitable, permanent, stationary structures.

The misconception: “Any structure is copyrighted architecture.”

Source: Copyright Office definition (Circular 41); Viad Corp. v. Stak Design (kiosks not covered); Yankee Candle v. New England Candle (a store within a mall not a “building”).

Confidence: High. Not contested.

Rule 9

Interiors of private homes sit in a grayer zone than exteriors.

The 120(a) exemption clearly covers exteriors and public interiors, and likely covers private-home interiors, but the case law is thinner there.

The misconception: “Interiors get the same airtight exemption as exteriors.”

Source: IP attorney Leslie Burns, writing for Architectural Photography Almanac, notes interiors of private homes are “likely covered as well, but it isn’t as clear in the case law.”

Confidence: Medium. Contested and fact-specific; requires a lawyer’s judgment.

Rule 10Surprising

An architect cannot legally stop publication of photos of their building, but they can bind you by contract.

The statute strips their copyright veto, but if you signed a project agreement giving the architect approval rights, you are bound by that contract, not by copyright law.

The misconception: “The architect owns the right to control building photos.”

Source: 17 U.S.C. 120(a) removes the copyright basis; contractual approval clauses are a separate, enforceable matter.

Confidence: High. Contract-dependent.

Keep reading

Drone and ExteriorWhere you stand to take the shot changes the answer. International DifferencesThe building’s own copyright is the rule that varies most by country. The architect cannot stop you. What is hanging on the wall might.Federal law says photographing a building visible from a public place is not infringement.
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