Wikilegal/Copyright of Images of Memorials in the US
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When evaluating the copyright status of pictures taken of public memorials and monuments in the United States, there are several factors to consider. The copyright status of the memorial or monument itself depends on its particular circumstances, and one will have to look into the facts surrounding its creation. Furthermore, the doctrine of freedom of panorama may operate differently for monuments or memorials with statues and sculptures, thereby changing the copyright status of pictures taken of those statues and sculptures.
Copyright Status of Memorials and Monuments
Federal law removes copyright protection from works of the U.S. government, but the U.S. government may not have actually designed and created any given memorial or monument. Works merely commissioned by the government may still enjoy copyright protection, as one U.S. Court of Appeals has ruled that if the government contracts with a third party to create a work, and the work, as commissioned, is not related to official duties of any government employee, the work will enjoy copyright protection. In these cases, the third party would hold the copyright, but the contract commissioning the work might transfer the copyright to the U.S. government. Because of this, it is possible for monuments or memorials created by or in conjunction with third parties to enjoy copyright protection, but whether the monument or memorial does, and who holds the copyright, will depend on the specific circumstances of the monument or memorial.
In Gaylord v. U.S. the court of Federal Claims considered these issues and came to the conclusion that the sculptor retained copyright in statues created for a memorial. In Gaylord the court ruled on the copyright status of the statues in the Korean War Veterans Memorial in Washington D.C. An act of Congress had created a government agency to oversee the creation of the memorial, and that agency commissioned a private agency to actually build the memorial. The statues, however, were ultimately sculpted by Frank Gaylord, who won a competition held by the private agency. Although the contract between the government agency and the private agency would have retained copyright for the government, the contract between Mr. Gaylord and the private agency contained a provisions expressly acknowledging Mr. Gaylord’s ownership of the copyright. Mr. Gaylord registered his copyright on multiple occasions. Based on the nature of the relationship between the government, the private agency, and Mr. Gaylord and Mr. Gaylord’s copyright registrations, the court of Federal Claims held that Mr. Gaylord had a valid copyright in the statues and the government was not a joint author. This finding was upheld on appeal.
The analysis in Gaylord provides a useful roadmap for determining whether the sculptor or designer of a monument might retain copyright. For any given monument or memorial, one must look at the body that commissioned the work, the actors who designed and created the work, whether any intermediary organizations oversaw or administered the work, and the general relationship between the parties. One must also consider the specific wording of the contracts between all of the various parties, as well as any external evidence, such as copyright notices and registrations.
Unfortunately, because of the many specific factors to consider, one cannot categorically assume that a monument or memorial is in the public domain by virtue of the U.S. government commissioning it. It should further be noted that Federal law only removes copyright protections from works of the Federal government; state laws may give copyright protection to works of state governments, further complicating the analysis of the copyright of state monuments and memorials.
Freedom of Panorama as it Relates to Memorials and Monuments
U.S. law provides for a concept known as Freedom of Panorama, which gives people the right to take and distribute pictures of architectural works visible from public places. However, the law defines architectural works as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” Federal regulations further specify that the term ‘building’ “means humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions.” These definitions seem to exclude sculptures and other three dimensional graphical works from architectural works, and in fact the Copyright Act puts three-dimensional works of fine, graphic, and applied art in a separate category of protected works: pictorial, graphic, and sculptural works.
In addition to determining the copyright status of the Korean War Veterans Memorial, the court in ‘‘Gaylord’’ also considered the defense’s argument that freedom of panorama should apply to the statutes (known as "The Column") in the memorial. The court rejected this argument, stating:
Beyond not being a building in the ordinary meaning of the word, “The Column” does not fit the Copyright Office's definition of the term. The structures used in the definition of “building” by the Copyright Office are intended to house individuals; either for the sake of providing shelter or for another purpose such as religious services. In contrast, the KWVM was designed as a monument to honor the veterans of the Korean War. [citation omitted] It is an artistic expression intended to convey a message rather than to be occupied by individuals. The fact that individuals may traverse through the KWVM does not detract from its intended purpose. Much like a walkway or bridge, the KWVM permits individuals to access through it, but is not intended for occupancy. Defendant's argument that the KWVM is a building explicitly rests upon the fact that the monument contains walkways; a feature which the Copyright Office excludes from its definition of “building.”
Furthermore, had Congress intended to extend the AWCPA to monuments and memorials, it presumably would have drafted the AWCPA to reflect such protection. The Act notably is silent regarding such structures. The Copyright Office, in defining a “building,” also chose not to list monuments and memorials. Again, had the Office intended to include monuments and memorials in the definition of “building,” it presumably would have included them in its list of structures.
Although the court’s finding only has binding precedential effect in future Federal Claims Court cases, the reasoning could persuade judges dealing with similar issues. Given the holding in ‘’Gaylord’’ and the language of U.S. copyright law, freedom of panorama likely does not extend to statutes and other sculptural works in memorials and monuments.
This analysis did not consider any arguments concerning fair use, and it is not intended to make any comment on whether a fair use defense could apply to pictures of monuments or memorials. Fair use analysis is complex and fact specific, and any such analysis will depend heavily on the circumstances of the case. Furthermore, some Wikimedia projects, such as Commons, do not permit fair use materials.
- 17 U.S.C. § 105
- See Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981).
- Gaylord v. United States, 85 Fed. Cl. 59 (2008) aff'd in part, rev'd in part and remanded, 595 F.3d 1364 (Fed. Cir. 2010).
- Gaylord v. United States, 595 F.3d 1364, 1382 (Fed. Cir. 2010) (Newman, J., dissenting)
- Gaylord, 595 F.3d at 1372.
- Unfortunately, state law in the U.S. is not centralized in a public database. For a listing of public databases available per state, see http://www.law.cornell.edu/states/listing.
- 17 U.S.C. § 120
- 17 U.S.C. § 101
- 37 C.F.R. § 202.11(b)(2)
- The decision to reject this argument was upheld on appeal. See Gaylord, 595 F.3d at 1381 (“We see no clear error in the court's determination that The Column is not an architectural work under the AWCPA.”)