Images of Public Places: Extending the Copyright Exemption for Pictorial Representations of Architectural Works to Other Copyrighted Works

Journal of Intellectual Property Law Volume 13 | Issue 1 Article 2 October 2005 Images of Public Places: Extending the Copyright Exemption for Pictorial Representations of Architectural Works to Other Copyrighted Works Andrew Inesi Mattel Overseas Operations Ltd. Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Architecture Commons, History of Art, Architecture, and Archaeology Commons, Intellectual Property Law Commons, Photography Commons, and the Printmaking Commons Recommended Citation Andrew Inesi, Images of Public Places: Extending the Copyright Exemption for Pictorial Representations of Architectural Works to Other Copyrighted Works, 13 J. Intell. Prop. L. 61 (2005). Available at: https://digitalcommons.law.uga.edu/jipl/vol13/iss1/2 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Inesi: Images of Public Places: Extending the Copyright Exemption for Pi IMAGES OF PUBLIC PLACES: EXTENDING THE COPYRIGHT EXEMPTION FOR PICTORIAL REPRESENTATIONS OF ARCHITECTURAL WORKS TO OTHER COPYRIGHTED WORKS Andrew Ine?* TABLE OF CONTENTS I. INTRODUCTION II. THE PROBLEM: COPYRIGHT CONSTRAINTS ON 62 ............................................ PUBLIC PHOTOGRAPHY ...................................... A. THE POTENTIAL FOR INFRINGEMENT ........................ B. C. 1. Copyright Ubiquity and Prima FadeInfringement ................ 2. Technology Makes LegalAcion Against Consumers More Likey ..... 63 64 64 67 THE INADEQUACY OF COPYRIGHT DEFENSES .................. 71 1. De Minimis Is Not Applicable in Most Cases ................... 2. FairUse Is Too Uncertain ................................. 3. A Defense ForImages ofArcbitecture: 17 U.S.C. f 12 0(a) ......... 71 75 81 MARKET FAILURE AND THE NEED FOR A LEGAL SOLUTION ...... 83 III. A SOLUTION: EXTENDING THE ARCHITECTURAL EXEMPTION TO ALL COPYRIGHTED WORKS ..................... A. A DESCRIPTION OF THE SOLUTION .......................... B. A JUSTIFICATION FOR THE SOLUTION ........................ 89 1. Benefits ............................................... 89 2. 93 C osts ................................................ 3. The Superioriy of a Simple, Bright-Line Rulefor Public Photography ........................................... IV . 86 86 CONCLUSION ............................................. 97 101 * J.D., Harvard Law School; LL.M. U.C. Berkeley (Boalt Hall) School of Law. Mr. Inesi is currently Managing Director of Mattel Overseas Operations Ltd. Published by Digital Commons @ Georgia Law, 2005 1 Journal of Intellectual Property Law, Vol. 13, Iss. 1 [2005], Art. 2 J. INTELL PROP.L [Vol. 13:61 I. INTRODUCTION' Imagine you are standing in Times Square with a digital camera. Creative works surround you: advertisements, buildings, and public art are visible on all sides. You plan to snap a few photos, but are not sure how you might use them. Perhaps you will delete them immediately. If you like them, you might post them to your website. If they are really great, maybe you will sell some prints, enter a photo contest, or even sell photos to an advertiser, stock photo agency, or magazine. With digital technologies, the possibilities are endless. Copyright law, however, may not allow you to take advantage of all of these possibilities. The creative works that surround you are almost certainly protected by copyright, and using photographs that incorporate those works may be a prima facie copyright violation.2 Although the legal defenses of de minimis and fair use probably protect some uses of these photographs-including, for example, the capture of the image or showing a print to a few friends-they do not apply to others. Most notably, they may not apply to many of the uses brought within the reach of consumers by new technologies, such as posting photographs to a website or selling high-quality prints. Even in cases where de minimis or fair use might apply, the ad hoc nature of these tests makes it difficult to rely on them. There is, however, an exception to this copyright conundrum. Pursuant to 17 U.S.C. 5 120(a), all uses are privileged if the only copyrighted items the relevant image includes are architectural works. This Article argues that this rule-the absolute privilege to capture and use images of architectural works visible from public places-should be extended, in modified form, to all copyrightable works. Such an extension would permit consumers to take full advantage of the photographic opportunities made possible by new technologies, and, in so doing, has the potential to create great social value at little cost. This Article has four Parts. Part I is this introduction. Part II describes the problem, showing how technology is empowering amateurs to make new uses of images containing copyrighted materials, and how copyright law is ill-equipped to handle this change. Part III proposes a solution to this problem-an extension of 17 U.S.C. § 120(a) to cover photographic representations of all copyrighted works-and explains why this solution makes sense. Part IV is a brief conclusion. 1 The author would like to thank Professor Peter Menell, Professor Robert Merges, and especially Professor Pamela Samuelson for comments on earlier drafts. 2 17 U.S.C. § 106 (2000). For a fuller discussion of this point, see infra notes 14-19 and accompanying text. https://digitalcommons.law.uga.edu/jipl/vol13/iss1/2 2 Inesi: Images of Public Places: Extending the Copyright Exemption for Pi 20051 II. THE PROBLEM: IMAGES OF PUBLIC PLACES COPYRIGHT CONSTRAINTS ON PUBLIC PHOTOGRAPHY New technologies are having a revolutionary impact on imaging. In just a few years, technological advances including digital imaging, gallery-quality home printing, Internet publishing, and desktop editing software have radically reduced costs and expanded possibilities for photographers and filmmakers (a group collectively referred to herein as "photographers").' These changes are having two important effects on the imaging market. First, the line between amateur and professional photography is blurring. Second, many more people are taking and using many more images, thereby increasing the importance of imaging as a communications tool. Copyright must be updated to account for these changes. Rules that may have made sense when image uses were highly stratified do not adequately address new imaging possibilities. This is particularly true for a class of images referred to herein as "public photographs": images that (i) incorporate only items visible from pubic places,4 and (ii) incorporate the copyrighted work(s) of third parties. Images captured in Times Square are paradigmatic examples of public photographs. Publ (...truncated)