Wikilegal/Pictorial Representations Architectural Works
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The Wikipedia community started a discussion on the use of pictorial representations of architectural works on Wikimedia Commons. The discussion raised a question on the use of a template to exempt any potential restrictions on pictorial representations of architectural works. United States copyright law provides an exemption to pictorial representations of architectural works. As copyright laws often vary from country to country, it is appropriate to provide some context on how United States copyright laws treat pictorial representations of architectural works.
The Berne Convention and the United States Copyright Act
Prior to 1990, the United States Copyright Act afforded no protection to architectural works. Buildings were considered to be “useful articles,” not protected by the Copyright Act. Architectural plans and drawings, however, were protected as “pictorial, graphical, or sculptural work.” After the United States joined the Berne Convention in 1989, copyright protection was expanded to include works of architecture to comply with the treaty. Congress did not afford architectural works the full copyright protection and exempted pictorial representations of architectural works from copyright infringement. Copyrights in an architectural work 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.
Motivation for the exemption stems from the key role that architectural works play in a citizen’s daily life, not only as a form of shelter or investment, but as a work of art with a very public and social purpose. Congress also reasoned that exempting pictorial representations of architectural works would not interfere with the normal exploitation of architectural works because of the nature in which the pictorial representations are used. For example, millions of people visit cities every year and take back photographs, posters, and other pictorial representations of architectural works as mementos of their trip. Architectural photographs are also often essential bases of scholarly books on architecture. Given the important public purpose and the lack of harm to the copyright owner’s market, Congress decided to provide the exemption, rather than relying on the doctrine of fair use. Therefore, pictorial representations of architectural works created after 1990 are exempted from copyright violation in the United States.
Pictorial Representations of Architectural Works on English Wikipedia
All Wikimedia project images (English Wikipedia or otherwise) must comply with United States law. As explained above, pictorial representations of architectural works created after 1990 are exempted from copyright protection under United States law and therefore are permissible on English Wikipedia.
Every user, however, should also comply with the laws of the jurisdiction that they are subject to and should make sure that their use or re-use of a particular pictorial representation of architectural works created after 1990 is permissible under local law. As laws often vary from country to country, labels may help users figure out if and how they can use the images. As long as a particular image may be posted in compliance with applicable law, the decision to post the image and the decision as to how to label that image rests with the community.
The Wikimedia Foundation will address any potential legal challenges as they arise. As the Wikimedia legal team can only represent the Foundation on legal matters, you are encouraged to seek the advice of an attorney for more information on the usage a specific pictorial representation of an architectural work.
- See Paul Goldstein, Copyright § 2.15.1, at 2:183 (1999) (“Structures built from architectural plans will often fail to qualify as pictorial, graphic, or sculptural works because their ‘intrinsic utilitarian function’ makes them ‘useful articles.”).
- Leicester v. Warner Bros., 232 F.3d 1212, 1217 (9th Cir. 2000) (citing 17 U.S.C. § 101).
- 17 U.S.C. § 120(a).
- H.R. Report 101-735, H.R. Rep. No. 735, 101ST Cong., 2ND Sess. at 12 (1990).
- Id. at 22.
- Leicester, 232 F.3d 1217.