Every Thursday I do a posting for this blog about intellectual property rights etc., and I am getting paid for this, so this is a commitment that I take seriously. It means that I tend to follow up anything (this link trail started here and went via here) with words like “copyright” or “patent” or “intellectual property” in it with less than my usual level of casualness about internet chitchat.
The Eiffel Tower’s likeness had long since been part of the public domain, when in 2003, it was abruptly repossessed by the city of Paris. That’s the year that the SNTE, the company charged with maintaining the tower, adorned it with a distinctive lighting display, copyrighted the design, and in one feel swoop, reclaimed the nighttime image and likeness of the most popular monument on earth. In short: they changed the actual likeness of the tower, and then copyrighted that.
As a result, it’s no longer legal to publish current photographs of the Eiffel Tower at night without permission…
So far so depressing, and I will probably do my next Thursday’s CNE-IP posting about this, unless something more compelling of an IP-related sort comes my way. Suggestions for that, and for my IP postings generally, are of course very welcome.
The bit that got me wanting to write about this for Samizdata comes immediately next:
…Technically, this applies even to amateurs. When I spoke to the Director of Documentation for SNTE, Stéphane Dieu,…
I love that surname.
…via phone last week, he assured me that SNTE wasn’t interested in prohibiting the publication of amateur photography on personal Web sites. “It is really just a way to manage commercial use of the image, so that it isn’t used in ways we don’t approve,” said Mr. Dieu.
In a way this is fair enough, if the property rights in question are not in any way controversial or even confusing. I let people into my flat and can still then control their behaviour by not allowing them in any more. But Intellectual Property rights with regard to something like open-air photography of architectural monuments, followed by Internet display, are hardly a model of clarity and certainty. What bothers me about this is the sense I have that the French Official Mind is not making very nice distinctions here between what is simply private property, and that which is public property, but still supposedly in need of protection. The protective methods they are using suggest a definite preference for benign tyranny over clear definitions of what is and what is not allowed. There is an air of “everything is prohibited, so that in practice most of it can still happen, but can then be arbitrarily interrupted whenever we feel like it”, about this.
It is surely not a good sign when things are described as “technically” illegal.
I will certainly regard myself from now on as entirely entitled to photo the Eiffel Tower at night, and to display my pictures of it on the Internet in any way I like that does not insult it or severely misrepresent its shape or nature. Yet I have the feeling that if Mr Dieu took against me for some other reason (perhaps for also photographing something more definitely forbidden than the Eiffel Tower at night), my Eiffel Tower pictures might still be used against me.
I would welcome comments on any of that, and also on the even more potentially fraught matter of the rights and wrongs of taking (interesting word use that) pictures of strangers and putting those up on the www, which is something I have already done quite a lot of, and hope in due course to do a lot more of.
A link to a reasonably simple explication of the legal facts in, on the one hand, Britain, and, on the other hand, on the Continent (my understanding being that the law is very different on either side of the Channel), would be especially welcome. Plus: will this contrast soon be ironed out of existence by the EU? Something tells me that if it is, it will be in the form of tighter prohibitions in Britain rather than any relaxation of the law on the Continent.
Maybe my fellow Samizdatista and more to the point fellow CNE-IPer David Carr has already written about all this, here, or here, and I either missed it or forgot about it.
As far as US law, in our most regulated state, this may be of interest.
As I recall, she lost her lawsuit.
I think the doctrine here is that if something is visible from a public place, it can be photographed. This would make the Chicago attempt to copyright the Bean questionable. They would need to put a curtain around it first.
In order to come into compliance of Article 2(1) of the Berne Convention (1989) the U.S. Congress passed the Architectural Works Copyright Protection Act (1990). I won’t go into detail regarding what the Act protects, however, it should be noted that its protections have two limitations (set forth in sec. 120); one of these includes the following language:
(a) Pictorial representations permitted. 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.
Whether the UK has something similar I can’t say.
In the U.S. you are allowed to publish the pictures of people for certain purposes; but in many American states you do have “publicity” rights which can be exercised to control how your image is used in certain circumstances. In essence this means that if you are using them commercially, you got to pay the person whose image you are using (in the states that have publicity rights statutes or case law).
And yes, the Anglo-American and the continental notions of copyright do differ, though those differences are shrinking as a result of GATT/WTO agreements (I can go into more detail on this matter if your are interested).
As to Eiffel Tower, I wouldn’t be surprised if French law doesn’t grant amatuer photographers a right to take pictures of buildings for personal use (except when those buildings have some sort of military/national security purpose).
Anyway, I don’t think that the currently outrageous nature of copyright law is the sole preserve of the French. For example, the length of copyright protection in the U.S. is something I find simply absurd.
Slightly OT but the Tulsa World is threatening a blogger by claiming a link to their site violates their copyright.
Gary:
Wasn’t US Copyright law changed from life+50 to life+70 so that the US would have the same copyright periods as Europe?
The first I remember of IP applying to monuments was the famed and still extant Unisphere (intercapitalization was poorly understood in those days) at the World’s Fair in Flushing Meadows, L.I. in 1964. 120 feet in diameter and weighing nearly 1m pounds and on public view.
http://queens.about.com/cs/attractions/p/Unisphere.htm
The company that spent millions to put it up also registered it as a trademark; images of it had to display the circled R; you can see examples on the souvenirs listed below:
http://www.hakes.com/item.asp?AuctionID=6&ItemNo=23108
http://www.rubylane.com/ni/shops/rubylane-sold/iteml/299958×2047#pic1
You couldn’t photograph it (commercially, presumably) without permission. Folks thought it was absurd at the time.
Many years later the colleges decided to make money from the many souvenir items sold, so that now not only do the college arms have a circled R beside them on mugs and tea towels, but even the name of the college will have it; see the college name here
http://www.tervis.com/store/retail/product.aspx?PGID=194
At this rate your Thursday column will never run out of material. You might explore whether the city fathers who pay for public art in the US can’t also acquire the copyright from the artist to settle the matter; I don’t believe we have the artist’s “moral rights” here as you do in Europe (hurts to think of you Brits as being in Europe now).
Ted Schuerzinger,
You are of course referring to the Sonny Bono Copyright Extension Act (1998).
Short Answer: As to its inspiration, well pressure from Disney and other corporations to extend the life on their variously copyrighted material was as important as anything else.
Slightly Longer Answer: The Berne Convention provides a floor of copyright protection of life plus fifty years, but it does allow signatory states to provide greater protection.
The EU in the mid-1990s adopted life plus seventy years to collapse each state’s period of protection into one standard (which makes sense), the standard being that of the state with the longest period of protection (Germany).
However, the U.S. wasn’t required to adopt this E.U. standard, it could have continued with the minimum set by the Berne Convention. However, as I intimated above, under pressure from companies like Disney – who would have seen its rights in Mickey Mouse dissappear between 2000-2004 – the Congress passed the above mentioned act. Furthermore, even if the U.S. had chosen to ignore the E.U. standard it wouldn’t have been a big deal since lots of countries don’t share the E.U. standard (for example, as I recall, Mickey Mouse has been in the public domain since the 1970s in Russia – communists believed in IP).
anonymous coward,
The U.S. does recognize moral rights in a number of ways; by statute (e.g., 17 USC sec 106A), the common law (e.g., the Congress claimed during the Berne Convention debates that the doctrines misrepresentation and unfair competition were the equivalent of moral rights), at least some case law, etc.
“Britain” has been part of Europe since at least time of its conquest by the Romans.
BTW, the U.S. adopted life plus fifty in an overhaul of copyright law in 1976 (this same effort essentially froze out the states from copyright protection when the expression was in a “tangible medium” – meaning in almost all circumstances). Thus this incredibly long period of protection was in place long before the Berne Convention’s floor was set in 1989. Tacking on twenty years in 1998 was merely adding a minor insult to the injury already comitted IMHO.
If you photoshop the lights out, there is no originality left to the work and the photos should be in the public domain. Somehow, I think that the bureaucrats would not be happy with the first commercial photographer who did it, though.
This isn’t just a continental/common law divide. French IP law is very different from, say, German, not necessarily in effect but in fundamental doctrine.
As I understand it (and I do not hold myself out as an expert in comparative law, though I make much of my living from the licensing of copyright), French Law distinguishes between moral and economic right, and the internationally recognised status of copyright is classified as an economic right; in Germany OTOH doctrine derives an economic right from the moral ownership of the creator.
France as we all know is fonder of particularistic law and interpretation in relation to “national” monuments and institutions than are most other Western liberal countries, however, the trail doesn’t appear to go back to any original French documents, reports of prosecution or such like, as far as I was able to follow it. It’s blog on blog all the way. Are we just commenting on an urban legend here?
To add to what Gary Gunnels said, the extraordinary length of corporate copyright combined with formal registration procedure is what marks the US out. It heavily favours large corporations in practice.
In my (professionally interested, remember) view personal copyright protection is far too long at life plus 70, and was at life plus 50. Life plus 25 seems to me about right. This allows dependents to benefit in the event of a premature death of the creator.
Remember copyright is, like corporate status, a privilege created by law. Corporations, being the rational conscienceless actors they are, seek to enhance and multiply their privileges in ways not open to and unconscionable in natural persons. Private institutions equally with public ones may be good servants and bad masters.
guy,
Yes, there gets to be a point where protection starts to actually impede the goals of copyright law (Anglo-American or otherwise): encouraging the creation of artistic, etc. works.
Guy Herbert,
Yeah, I did a short Google search on the issue found that the story was blog-only. I know crap all about French copyright law (I do have some knowledge of their bankruptcy code though) and have no idea whether this should be tripping my bullshit detector or not.
Brian, talking of French IP, isn’t it right that the French have a law giving descendants of an artist the right to enjoy income derived from sales of their ancestor’s work? I think this applies to stuff like paintings and sculpture. Be glad if someone could put me right on this.
My girlfriend and I were actually up the Eiffel Tower this weekend. It had a bloody great advert on the side touting the Parisian case for hosting the Olympic Games, which I found slightly annoying. The view was worth it, though. It always is.
Johnathan Pearce,
Well, the offspring of copyright holders have the same right in the U.S. (sort of); that’s the whole point of life plus x number of years. The copyright holder dies and as part of his estate his copyright is doled out to his heir(s). Now, maybe you are talking about something different, something more along the lines of say real property being passed down from generation to generation ad infinitum. However, like I wrote, I know fuck all about French copyright law.
Yeah, Paris is a marvel of a city; much of it due to Napoleon III.
Guy, what is your opinion on a copyright in perpetuity? J M Barrie willed the copyright to Peter Pan to a children’s hospital and I think they’ve been benefitting from it for around 90 years. I’m sure there’s more to it than this, but will this particular copyright ever revert to the public domain?
In Britain:
I assume the Eiffel Tower and its lights would be a “building and/or work of artistic craftsmanship permanently situated in a public place” if they were in Britain. Which of course they’re not.
Gary:
The reason I suggested that the US extended copyright terms to be more like Europe is that I distinctly recall about 10 years ago there being lots of derivative works of Munch’s The Scream, since the 50 year anniversary of his death had just passed. I also recall the “progressive” Europeans being irritated about how we “gauche” Americans were making money off of this….
What does it matter? If I decide to post a picture of that pile od scrap iron in Paris, what exactly can the Frnech do about it? Come arrest me? Bring it on!
Just don’t tell my neighbors, they like shooting frenchmen as well as any American does and they will kill my share way before I can get might sights lined up.
The First lesson of leadership is ‘NEVER give an order that you know won’t be obeyed’.
Verity:
Re Peter Pan: see
http://www.ich.ucl.ac.uk/pressoffice/pressrelease_00079
At the bottom it notes this copyright is a special case.
Robert Hale
My question is, with regard to J M Barrie and similar, can the copyright be renewed by the current holder?
verity,
I think that its safe to say that as long as there are politicians who can be persuaded to extend the length of copyright (and do so retroactively), it will never enter the public domain.
Stehpinkeln,
If you violated a French copyright, it would be the U.S. government on your ass.
Ted Schuerzinger,
Perhaps, but that really wasn’t much of a factor; it was the lobbying of certain corporations like Disney (as well as Turner and others) that made the difference.
verity,
There isn’t a need for renewal. The copyright runs from the time of creation (whether you register it or not).
Gary, No, I meant after the creator of the work dies. J M Barrie willed the copyright on Peter Pan to (I think) the Great Ormond Street Children’s Hospital. So when the natural span of the copyright expired, X years after his death, I’m asking whether Great Ormond, as the current owner, could apply to have it extended.
Verity:
Guy, what is your opinion on a copyright in perpetuity?
Just another, and rather rare, creature of statute. The exception you refer to is sentimental legislation, and applies only to specific forms of the work in the UK. It presumably will subsist till the legislation is inadvertently repealed, the beneficiary ceases to exist, or the “only in the UK bit” is struck down as interfering with the Single Market.
Perpetuities do produce oddities. Stick around long enough as an institution and, pretty much regardless of merit, you will accrue great wealth and power. Until the coming of the joint stock company, and for a while afterwards, all the wealthiest non-statal organisations were religous charities, followed by long-lived noble houses more subject to the faiblesse of heredity.
Perhaps I should mention that Gt Ormond St does appear to be trying to do something nearly equivalent to extending copyright in some other parts of the world by commissioning a sequel while the copyright term is still running. This would presumably have Sonny Bono length protection in the US, and the US recognises sequel rights, (which English Law doesn’t). So Pan and Wendy might continue to rake in royalties for sick children from the US for another century yet…