AIAP Newsletter 08/31/05

Dear AIAP Members,

This month's newsletter is a special feature from noted attorney and author Bert Krages..  I recently contacted Mr. Bert Krages regarding the rights of architectural photographers under the law as related to the photography of public buildings, utilities and transportation, etc.  

I receive email from photographers on a regular basis who have been harrassed while attempting to complete a bona-fide assignment.  I too have been stopped, questioned, detained and threatened with confiscation of my equipment.  Mr. Krages has addressed this problem quite thoroughly in his publications and the article which follows.

I hope that you'll print this article for your own reference, and take the time to visit Mr. Krages' website for more information.

Best regards,
Alan Blakely, Director
The Association of Independent Architectural Photographers



Legal Aspects of Photographing Public Architecture - by Bert P. Krages, Attorney at Law

Architectural photographers are increasingly running into situations in which someone asserts they cannot photograph publicly-visible buildings and similar structures for various legal reasons. The most common reason given is national security although justifications based on privacy rights, copyright, and trademark protection have also been asserted. However, these assertions are almost always based on erroneous views of the law and most public architecture may be freely photographed.
Despite widespread misconceptions, there are no laws that prohibit the photography of most buildings, bridges, railroads, or industrial facilities. Although security guards and law enforcement personnel sometime cite the Patriot Act or the Homeland Security Act as authority to curtail photography, neither Act places any restrictions on photography nor do they authorize government officials to deny “suspicious individuals” access to property that is freely available to other people. Although there are statutes that prohibit the photography of military and nuclear facilities that have been designated as classified, other government buildings may be lawfully photographed. In practice, the exterior portions of nuclear facilities are rarely considered classified but it is often unclear whether publicly-visible military structures have been designated as classified. If in doubt, the best source of information to contact is the public relations officer assigned to the facility.
Privacy rights, such as the right to be free from intrusion or not to have one’s likeness used to endorse a product or service, are personal rights that do not extend to property. This means that building owners have no right to prohibit photography of their structures, irrespective of whether they are commercial or residential in nature. However, they do have the authority to exclude you from the property itself. Similarly, many states and local governments have voyeurism laws that prohibit photographing into the interior spaces of residential buildings in a way that violates the privacy of the persons inside them. 
Intellectual property laws generally do not impose impediments to photographing buildings. Although buildings became eligible for copyright protection in 1990, the copyright statutes explicitly allow for the photography of buildings that are in public view. Therefore, a photographer will not infringe upon the copyright to a building by photographing it. However, buildings are sometimes adorned by artwork such as murals or sculptural elements that may be separately protected by copyright. In such cases, the copyright issues are largely the same as if the work was being photographed apart from the building. While there have been trademark lawsuits filed in the past in which building owners have sought to prevent the selling of images of their buildings in the form of posters and such, none of the owners have never prevailed in court. Although it is technically possibly to have a building constitute a trademark, the impracticalities of doing so are enormous and the prospects of infringing a trademark by photographing a building are very slim. 
Unfortunately, the lack of legal authority does not keep people from trying to stop photographs from being taken of buildings. In many cases, confrontations can be avoided by notifying the owner ahead of time and explaining the purpose of your photography. Most confrontations can be handled satisfactorily by staying calm and explaining that it is legal to photograph buildings. When dealing with building owners or security guards, you may want to consider calling the police if the situation appears that it is going to escalate. If it is the police that are confronting you, it will usually be best to stop the photography. You can later complain to the public relations or internal affairs department about the officer’s behavior. In the event that your equipment is seized or images are destroyed, you will likely have civil remedies that you can pursue in court.
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Bert Krages is an attorney based in Portland, Oregon and author of Legal Handbook for Photographers. A one-page flyer summarizing the right to take photographs in public places can be downloaded from his website (www.krages.com).

Bert P. Krages 
Attorney at Law 
6665 S.W. Hampton Street, Suite 200
Portland, Oregon 97223
< http://www.krages.com>

Author of: 
Total Environmental Compliance: A Practical Guide for Environmental Professionals 
< http://www.krages.com/tec.htm>

Legal Handbook for Photographers: The Rights and Liabilities of Making Images
< http://www.krages.com/lhp.htm>