To give your website the perfect look and feel, you want to take and use a photograph of that attractive building across the street because of its clean and open design. No problem, because your website is not about the building anyway, right? Copyright law can, however, be a hidden pitfall.
Copyright
The Dutch Copyright Act grants the creator of a work the exclusive right to make it public (publish) and to reproduce it (copy). Copyright arises automatically upon the creation of a work and remains valid until 70 years after the creator’s death. A photograph of a work is a reproduction of that work and may therefore constitute a copyright infringement.
When do you infringe copyright?
An architect holds copyright in a building or bridge they have designed. Copyright also applies to the construction drawings and sketches. Taking a photograph of the building is a copy of the work. This would mean that you are infringing the architect’s copyright.
Exception for photographs of buildings
There are, however, certain exceptions to the exclusive right of publication. One of these exceptions applies when you take a photograph of a copyright-protected building located in a public space. The building must be permanently situated in a public space and must be depicted as it is located there. This exception to copyright is commonly referred to as the right of panorama.
A building will usually meet the requirement of permanent placement quite easily. It must be intended to be placed for an indefinite period. An image may only be made if the work is located in a public space. A public space must be accessible and visible. It therefore does not matter that the land on which a building stands is privately owned, as long as it is visible from a public space. A photograph of the building taken from the street therefore falls within the exception to the exclusive right of publication.
The image must show the building as it is located there. This means that the work must be depicted in the context of its surroundings. It may be the main subject of the image, provided that the context remains visible. This means it cannot be an isolated image and the street or neighbouring buildings must also be visible.
An important caveat is that the right of panorama is not harmonised across all European countries. Different rules may apply elsewhere. For example, there is no right of panorama for copyright-protected buildings located in Italy.
Portrait rights
Because of the right of panorama, the copyright holder cannot object to the publication of photographs of their work. Are there any other rights the creator could rely on? In the context of photography, reference is often made to portrait rights, but this argument will not succeed where photographs of buildings are concerned. Invoking portrait rights for buildings makes no sense. A portrait is an image of a person’s face, created in any manner. For portrait rights to apply, a person must be depicted. Photographs that show only buildings therefore do not infringe portrait rights. A person portrayed cannot rely on a portrait rights infringement for photographs of buildings. The courts have also confirmed this recently.
Attribution
So which right does the creator still have? The creator of a work does have the right to be named. A work may not be made public without mentioning the name or another identifying designation of the creator. An architect can protect their design through attribution. In principle, any architect could therefore initiate legal proceedings if their name is not mentioned. This does not happen often in practice. You can easily avoid this by mentioning the architect’s name on your website.
There has not yet been a court ruling on the right of attribution in the context of the right of panorama. In such cases, the specific circumstances and what is reasonable will be taken into account. We can provide concrete advice tailored to your situation.
Conclusion
To publish a photograph of a building on your website without the consent of the copyright holder, the photograph must fall within the scope of the right of panorama. This means that the photograph of the building in a public space must meet the requirements of permanent placement in a public space, and the building must be depicted as it is located there. It is also advisable to include the name of the creator. You can then publish the photograph on your website without concern. Do you have questions about copyright? We are happy to think along with you.
