----- Original Message -----
From: "Road Runner" <[EMAIL PROTECTED]>
To: <[email protected]>
Sent: Tuesday, January 03, 2006 10:42 AM
Subject: Re: [AP] Extreme copyrights
>I was talking to my friend tonight, who is the one who told me about this
> extreme copyright. He said that it was a fact, but they only enforce it
> when
> large companies, such as MGM, Warner Brothers, or some TV program
> shoot a scene of the San Diego skyline.
snip
With all due respect to your friend I am curious to see what the official
position is as I find his explanations somewhat suspect. Most cities try to
encourage the motion picture industry and actually come up with inducements
rather than fee's. Add to this the free promotion for tourism and more bang
for a buck is to be had by not charging...until we get the final explantion
this may be somewhat relevant:
Mike Snell
Photography:
Travel Photography and the Law
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Do I Need Permission?
By Dianne Brinson for PhotoSecrets.
Before you take that photo, you may need permission for the following:
Photographing buildings, works of art, or other copyrighted items;
Photographing people; Photographing on public or private property. In this
short article, attorney Dianne Brinson briefly discusses when permission may
be required.
Copyright
Under current U.S. law, copyright protection arises automatically when an
"original work of authorship" is "fixed in a tangible medium of expression".
A work is "original" in the copyright sense if it owes its origin to the
author. For example, a photograph of Yosemite's Bridalveil Fall is original
so long as it was created by the photographer, even if it's the zillionth
photo to be taken of that scene. Only minimal creativity is required to meet
the originality requirement, no artistic merit or beauty is required.
Works of art - sculptures, paintings, and even toys - are protectable by
copyright. Furthermore, buildings created on or after December 1, 1990 are
protected by copyright. A copyright owner has the exclusive right to
reproduce a copyrighted work, and photographing a copyrighted work is
considered a way of reproducing it. Thus, you may need permission to
photograph a building or an art work.
Here are some guidelines:
Buildings
Only buildings created after December 1, 1990 are protected by copyright.
Fortunately for photographers, the copyright in an architectural work does
not include the right to prevent others from making and distributing photos
of the constructed building, if the building is located in a public place or
is visible from a public place. So you don't need permission to stand on a
public street and photograph a public building. You don't need permission to
photograph a public building from inside the building (although you may need
permission to photograph separately-owned decorative objects in the
building, such as a statue). You don't need permission to stand on a public
street and photograph a private building such as a church or a house.
This "photographer's exception" to the copyright-owner's rights applies
only to buildings, a category which includes houses, office buildings,
churches, gazebos, and garden pavilions. The exception does not apply to
monuments (protectable as "sculptural works") or other copyrighted works,
such as statues and paintings.
Art
You may need permission to photograph a copyrighted work of art, for
example, a statue in a public park, or a painting in a private collection or
art museum. And getting permission can be tricky, because, according to
copyright law, you need permission from the copyright owner, not from the
owner of the work of art itself. In copyright law, ownership of the
copyright in a work is distinct from ownership of the copy (the tangible
item).
For example, suppose that you are taking photographs of a painting in an
art collector's private home collection. The art collector probably does not
not own the copyright in the painting, the artist does. Unless your
photograph of the painting is "fair use" (discussed later) you need
permission from the artist.
When You Don't Need Permission
You don't need permission to photograph a work that is not protected by
copyright (in "the public domain"). Works fall into the public domain for
several reasons, one of which is expiration of the copyright term. In 1997,
works created before January 1, 1922 are in the public domain. Also, works
created by federal government officers and employees as part of their
official duties are not protected by copyright. (This rule does not apply to
works created by state or local government officers and employees).
You don't need permission to use a copyrighted work in two circumstances:
(1) if you are only copying facts or ideas from the work; or (2) if your use
is "fair use".
You are free to copy facts from a protected work or to copy ideas from a
protected work. The copyright on a work does not extend to the work's facts.
This is because copyright protection is limited to original works of
authorship, and no one can claim originality or authorship for facts. Anyone
can use ideas.
Fair Use
It may be that your photograph is "fair use" of the art works you
photograph. If so, you don't need permission. Whether a use of a copyrighted
work is fair use is decided on a case-by-case basis by considering the
purpose and character of the use, the nature of the copyrighted work, the
amount and substantiality of the portion used, and the effect on the
potential market for or value of the protected work.
There is no simple rule to determine when an unauthorized use is "fair
use". You are more likely to be able to rely on fair use for photographing
copyrighted items if your work serves a traditional fair use purpose
(educational, research, news reporting, criticism, or public interest). Fair
use is always subject to interpretation.
Publicity and Privacy Rights of Individuals
You may need permission to photograph people due to state laws giving
individuals privacy and publicity rights.
Most states in the US recognize that individuals have a right of privacy.
The right of privacy gives an individual a legal claim against someone who
intrudes on the individual's physical solitude or seclusion, and against
those who publicly disclose private facts. Unless you have permission, avoid
publishing or distributing any photo of an individual that reveals private
facts about the individual (particularly if revealing those private facts
might embarrass the individual).
Almost half the states in the US recognize that individuals have a right
of publicity. The right of publicity gives an individual a legal claim
against one who uses the individual's name, face, image, or voice for
commercial benefit without obtaining permission. In case you are wondering
how the news media handle this, newspapers and news magazines have a "fair
use" privilege to publish names or images in connection with reporting a
newsworthy event.
Be particularly careful about celebrities. Using a photograph of a
celebrity for your own commercial gain - for example, posting a photo you
took of Clint Eastwood on your business's marketing material or Web site -
is asking for a lawsuit, even if you took the photograph when you ran into
Clint on a public street.
Commercial photographers avoid right of publicity/privacy lawsuits by
obtaining photographic releases from people shown in the their shots. If you
are considering selling your photos or using them on your Web site, you may
want to do the same. The Multimedia Law and Business Handbook contains a
sample release. Experienced performers and models are accustomed to signing
these releases.
Permits
If you are going to shoot commercial photographs on public property, you
may need to get a permit from the appropriate government authority (usually
a local or state film commission). Permission is generally not required for
taking the usual "tourist type" photos (although you should obey any "no
entry" signs you see).
If you are going to shoot on private property, get permission to enter and
use the location for shooting and to show the premises in your work, in
order to avoid trespass and invasion of privacy claims by the property
owner.
The Internet
The laws and rules described in this article apply to photos used on the
Internet. Copyright law and other laws do apply to the Internet, and posting
a photo on the Internet exposes your photos to the eyes of the whole world.
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DISCLAIMER:
This article is provided with the understanding that neither the author
nor the publisher is engaged in rendering legal or other professional
service. If legal advice or other expert assistance is required, the
services of a competent professional person should be sought.
About the Author
Dianne Brinson, a copyright attorney, received her law degree from Yale
Law School and her B.A. from Duke University. A former law professor, Dianne
currently teaches Law for Internet Users at San Jose State University's
Professional Development Center.
For more information, read the book Multimedia Law and Business Handbook,
by J. Dianne Brinson and Mark F. Radcliffe (available from Ladera Press for
$44.95 plus shipping, (telephone: 800-523-3721).
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Related Web Sites
a.. The Legal Aspects of Photography
a.. Legal forms from the NPPA
a.. Permit information from the National Park Service
a.. Copyright Act of 1976 as amended 1994 The full text of the Act. Due
to the reliance in our legal system on case law, interpretation and
precendent, the actual text of the Act may prove confusing in some
circumstances and could be misleading in others.
a.. Copyright and news photography
a.. American Intellectual Property Law Association
a.. Cyberspace Law Abstracts
a.. Electronic Fair-Use Guidelines
a.. Media and Entertainment Law Journal
a.. The Multi-Media Handbook
a.. The Advertising Law Internet Site
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