This article explores the "freedom of panorama" concept and different approaches to regulating it throughout European countries and abroad.
Maria Boicova-Wynants,
Mediator, Business Writer, Trademark and Patent Attorney
You can admire it, but can you freely share your admiration with the world? Public art and freedom of panorama
To begin with, photographing artwork is a way of reproducing it, while the exclusive rights to reproduce the artwork belong to its copyright owner. Another exclusive right of the copyright owner is to create derivative works based on the original artwork. If the artwork is, thus, three dimensional, then creating a photograph could be perceived as a creation of a derivative work. This, as I have just mentioned, is an exclusive right of the copyright owner. Does it mean that every time one takes a picture of the public artwork, s/he violates the copyright owner’s exclusive rights? The answer is not so straightforward. In what follows I will try to explain the question in a bit more detail, providing a general overview of the matter and citing some interesting legal cases to further reflect upon.
First of all, to set things clear: photographing public art is always allowed. The problem might arise, however, not out of the mere fact of taking a picture, but rather related to the subsequent use of that picture. In this respect, like it is frequently with all legal matters, whether it is allowed or not, it depends. Different countries around the world have surprisingly different regulation in what concerns the public art and the right of reproduction thereof. Moreover, even in the (seemingly) single market of the European Union, the regulation of this issue is rather uneven, to say the least.
When one discusses the reproduction rights, the concept which comes into light the most often is freedom of panorama. In a nutshell, freedom of panorama is a provision permitting taking photos (and/or videos), creating paintings (sketches, etc) of buildings, sculptures and other artworks that are permanently located in a public space, without being accused of infringement of copyright. That is, of course, a very broad definition and it does not include the limitations and exceptions, while they are, in their turn, the subject of heated debates.
The EU Directive 2001/29/EC (also known as the Information Society Directive) provides for the possibility of introduction of a freedom of panorama clause, however, leaves it up to member states to decide on the matter. In other words, if the member state decides not to introduce a freedom of panorama exception at all, it is free to do so. If the member state decides to include an extensive list of limitations, or on the other hand a list of particular applications only, it is likewise free to do so. However, given that the modern trade (communications, education initiatives, etc) largely happens across borders, this creates quite a confusion.
Thus, in countries like France and Italy, there is no concept of freedom of panorama. In the case of Italy, it is even not only the matter of copyright. The Italian Code on Cultural Heritage and Landscape assigns the Ministry of Arts and Cultural Heritage with the power to license all reproductions of public architecture and sculpture. Articles 107 and 108 thereof require asking proper authorizations and paying a fee to the relevant authority. In other words, the use of a picture of the sculpture of David (even though Michaelangelo’s copyright is long expired) for commercial purposes would not be allowed (and even personal purposes might not always be exempt), because it falls under the provisions vis-a-vis the cultural heritage protection. On the other hand, laws in Germany and the United Kingdom are on a completely different side of the scale. Thus, the concept of panorama freedom (“panoramafreiheit”) has been introduced in the German law since as early as 1876. This concept is present also in the UK Copyright, Design and Patents Act as of 1988, and even applies to the interior of public buildings. In many other countries, like Denmark, Spain, etc. freedom of panorama is introduced, but limited to private and non-commercial purposes.
A brief comment on the later, as the “commercial/non-commercial purpose” concept, has been mentioned a couple of times already: generally speaking, non-commercial use of pictures is allowed. The complications, as always, arise out of the fact that there are no “general situations”. Thus, one of the landmark Swedish cases related to taking pictures of public artworks involves Wikipedia. In October 2012 sculptors Claes Oldenburg and Coosje van Bruggen demanded the Wikimedia Foundation (owner of Wikipedia) to remove 59 images of their sculptures from the Wikipedia website. To note, that all sculptures were on permanent public display around the world and they were made available at a non-commercial website, Wikipedia. The findings of the court were that because the photos are put online in a publicly available database that allows others to use them also for commercial purposes. Such a conclusion of the court is in fact alarming because of the ignoring of the inherent non-commercial objectives of Wikipedia. By the same logic, potentially also photos shared on private social media, for example, Facebook feed (provided the post settings are made “public”, or even, actually, in the restricted “friends only” option) would allow someone to use them in commercial activities. Hence, “commercial/non-commercial” differentiation is rather fluid.
An interesting case is also Radford vs Hallensteins Bros Ltd, considered in New Zealand. In that case, J. Radford (a sculptor) created three sculptures to be placed in a public park. The Hallensteins is the clothing retail chain, which sold t-shirts featuring photos of Radford’s sculptures. Thus, the essence of the dispute was about the commercial use of the two-dimensional reproduction of three-dimensional public artwork. One might believe that the conflict was decided in favor of the sculptor, as generally speaking the reproduction rights belong to the copyright owner. However, there was a twist in this case. The court concluded that the sculptures created by Radford over the years acquired a landmark status and that is precisely why the public interests were believed to be prevailing in this case. The bottom line is, the court held that in the fact that photos of sculptures are used for commercial purposes (printed on t-shirts) there is no infringement of the sculptor’s copyright.
Now, would that work for the Eiffel Tower? An answer to this question is also: it depends.
First, talking about France, there has also been a case on the use of pictures of public artwork. The pictures of the square in Lyon with fountains created by Daniel Buren and Christian Drevet were used on postcards, without their permission and without mentioning the artists’ names. In this case, the court did not side with the artists, reasoning that their public artwork is not the central element of the photo of the square.
Coming back to the Eiffel Tower, technically speaking, since the creator of the Eiffel Tower died in 1923, 70 years later, thus, since 1993 there is no more copyright in the Eiffel Tower as such. However, there is another artistic element added to the Eiffel Tower in 1985, making it once again an object of copyright protection. The twinkling lights visible on the Eiffel Tower at night are considered to be a separate artwork, wherein copyright has not been expired. Currently, the SETE (La Societe d’Exploitation de la Tour Eiffel) is the copyright holder in connection with the twinkling lights on the Eiffel Tower. This means that any use of the photo of the Eiffel Tower at night should first be allowed by the SETE.
To give some more food for thought (or better for discussions), the Columbia Pictures has been successfully sued by the Archidiocese of Rio de Janeiro for the unauthorized use of the video footage featuring the statue of Christ the Redeemer. Recently also Mercedes Benz has been in the news for the legal battle with Detroit street art artists over the commercial the car manufacturer produced. In that commercial Mercedes GL 500 is driving around on the streets of Detroit with murals flashing in the background. The outcome of the case is still not known at this point, but it might turn to be a very important case in the context of determining the rights vis-a-vis depiction and use of public artworks.
In 2017 the European Commission published a report on the public consultation on the panorama exception. The majority of the respondents stressed that they lack clarity as to whether their actions are legal or not. As mentioned already, the current situation creates a lot of potential confusion and impediments to the development of a digital market. Consider, for example, the MOOCs (massive open online courses), which didn’t even exist before not that long ago. The use of images for educational purposes is non-commercial by definition and that is, once again generally speaking, allowed. However, what one cannot forget is that online education most of the time happens on commercially minded platforms. The income online can be generated in various ways, be it from the direct sales of particular digital content, or via advertising or the sale of the end-user data or in numerous other ways. Therefore, it becomes increasingly difficult to differentiate between what is commercial and what is non-commercial. Moreover, should one be guided by the Wikipedia case in Sweden, that would create a significant impairment to the further development of such initiatives as MOOCs and alike.
In what concerns the tensions between the copyright owner and the public in connection with public art, it is worthy to stress also that one of the ideas behind public art is to foster the public’s reflections and discussions. Such discussions can take place through education, commentary, critique, but also commercial activities. In that sense, the legal obstacles for engaging in such discussion would impair the ability of the public to engage in a dialogue. There is another argument in favor of full freedom of panorama and removing the “commercial/non-commercial” differentiation, being that the underlying idea of copyright laws is to protect copyright owners’ commercial value of their works. It should not be used as a vehicle to obtain further revenue in new markets, which moreover, doesn’t affect the initial value of the artwork. Whether the above-mentioned arguments hit home with you or not, it is nonetheless a given that different legal norms in different countries regarding the same activity, which in the reality of the modern world is most of the time cross-border, creates the confusion. Such a situation is an obstacle to the realization of the Digital Market Strategy (intended by the European Union) and impedes the growth maximization in the digital economy.
Nevertheless… what about the artists? Does it mean that if an artist created a public artwork, s/he has to allow everyone to profit out of it, also purely commercially? How to strike the right balance between the rights of an artist and the rights of the public at large? Those questions are fair and they warrant proper attention and further regulation. Besides, the regulation can no longer be confined to the national borders, as more and more activities extend beyond them.