Artistic works: get in the picture
Permission should be sought before making reproductions for commercial use
IN MODERN advertising campaigns, it has become common for companies to use a landmark in their advertisements with the aim of establishing a commercial link. Take, for example, the Richelieu Brandy advertisements which prominently feature the Eiffel Tower in Paris. Richelieu uses the Eiffel Tower with the aim of creating the impression that their brandy is associated with France which is generally renowned for its high quality foods and beverages.
It is interesting to note that during these advertisements Richelieu only uses the Eiffel Tower without its nighttime illuminations. The reasoning behind this is that even though the copyright in the tower itself has already fallen into the public domain, the light show during the evening was added later, which entails that it still falls under copyright protection. Therefore, the daytime views of the Eiffel Tower are rights-free. However, the unauthorised commercial use of photographs or video footage of the night-time illuminations of the Eiffel Tower may constitute copyright infringement.
Similar protection is given to the Atomium in Brussels. The Atomium was originally designed by the engineer André Waterkeyn for the Brussels World’s Fair in 1958. Waterkeyn died on October 4 2005 and, as such, the copyright in the Atomium (in so far as it enjoys copyright protection in SA) will only lapse on the 50th anniversary of Waterkeyn’s death. The Atomium clearly expresses this protection on its website by stating “any use of the image of the Atomium must be submitted to the organisation [SABAM and Atomium asbl] before it is published.”
Article 5(2) of the EU Directive 2001/29/EC provides as follows: “Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: … (h) use of works, such as works of architecture or sculpture, made to be located permanently in public places.”
This optional clause is generally known as the “Freedom of Panorama” and it provides that reproductions (e.g. taking photographs) of artistic works, such as architectural projects, statues or light shows, in public spaces may be used for commercial purposes free of charge should the member state elect to incorporate this clause in their legislation. It is with this optional clause that the protection lies, since several of the EU countries (including France, Belgium, Iceland and Italy) elected not to introduce the aforesaid clause in their copyright legislation. As such, no such Freedom of Panorama is available in these countries and therefore artistic works in public places in these juris- dictions are still protected under the respective copyright laws. Therefore, any unauthorised commercial and/or public use of photographs or video footage of artistic works in the aforesaid jurisdictions may constitute copyright infringement.
This exception should not be confused with the principle of “fair dealing” which essentially entails that the personal and/or private use of reproductions of artistic works does not constitute copyright infringement.
In the South African context, our Copyright Act provides protection for “artistic works” which include sculptures, buildings, structures and works of craftsmanship. As such, should a third party make a reproduction (eg take a photograph) of an artistic work without the authority of the copyright owner, and use such reproduction for commercial use, the reproduction may constitute copyright infringement.
However, similar to the EU Directive, the South African Copyright Act also provides for certain exceptions to copyright infringement. One of these exceptions is that the copyright in an artistic work will not be infringed by making a reproduction (eg taking a photograph) or inclusion in a cinematograph film or a television broadcast if such a work is permanently situated in a street, square or a similar public place. What is important for this exception to apply is that the artistic work should be permanently situated in a street, square or a similar public place. Thus, there are two important elements to this exception. The first is that the artistic work should be “permanently” situated in a public place. The New Shorter Oxford English Dictionary (1993) defines permanent as “remain to the end … Continuing or designed to continue indefinitely without change, abiding, lasting, enduring, persistent”. From this definition it is clear that the artistic work should not be able to move or be easily removable from its position in the public place.
The second element is that the artistic work should be situated in a street, square or similar public place. Whether or not the work meets this requirement will be a question of fact. For example, the Nelson Mandela statue which is situated at the Union Buildings should qualify as being situated in a similar public place. Be that as it may, it is clear that the legislature had in mind to exclude artistic works which are permanently situated in areas which people have free access to.
Should a company in SA for example use a photograph taken of the Nelson Mandela statue at the Union Buildings for a television advertisement, the reproduction of the statue on the television advertisement will fall within the aforementioned exception. However, should the same company use a photograph taken of a painting situated in a public place, which is not permanently mounted, the commercial use of such photograph (or other use which does not fall within the scope of the “fair dealing” definition) might constitute an infringement of the copyright owner’s right in that artistic work.
To conclude, it should be stressed that the aforementioned copyright principle is not just limited to the European Union or SA, but it is a worldwide phenomenon. As such, to err on the side of caution, should you wish to use commercially a photograph or video footage of an artistic work situated in a public place, it would be wise to obtain prior permission from the rights holder before using such reproduction.
The legislature had in mind to exclude artistic works which are permanently situated in areas which people have free access to
There are two important elements to this exception (copyright in an artistic work will not be infringed by making a reproduction). The first is that the artistic work should be ‘permanently’ situated in a public place
The second element is that the artistic work should be situated in a street, square or similar public place