Architectural overreaching

This recent post on the TechDirt blog drew my attention (and that of may others) to an earlier note on the Freakonomics blog about an artist who pays an annual fee plus a percentage of his earnings to the University of Texas, Austin for the right to paint pictures of famous UT buildings like the Texas Tower and to use university emblems, even including the burnt orange color scheme.

On TechDirt, notice of this arrangement provoked a lot of angst.  Many of the comments expressed outrage at the “fact” that ordinary citizens who have to pay a copyright fee for photographs they take of public buildings, because of the copyright protection afforded to architecture.  That this is the state of the law is affirmed by several of those comments.  In contrast, the blogger who wrote the TechDirt post in the first place asked a differently focused question –“why should the painter have to pay a fee at all?”

All of the venting in the comments on this blog post reminded me of an article I have been reading by Professor Jessica Litman, about which I shall say more in another post, in which she discusses the “independent threat to the health of the copyright system” that arises from the “widespread perception of the current copyright system as illegitimate.”  The outraged comments point up this perception, even though they are largely misinformed.  The important question to address in this particular situation is really that other one — why pay a fee at all? — since the answer should allay some of the outrage.

The basic response to the concern for photographers and artists is that the copyright law provides an explicit exception, a limitation on the scope of the right in architectural works, that makes most drawing, paintings and photos of buildings non-infringing.  Section 120(a) of the Copyright Act (Title 17 of the US Code) says:

Pictorial Representations permitted — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing or public display of pictures, paintings, photographs and other picotial representations of the work, if the building in which the work is embodied or is ordinarily visible from a public place.

So there is no way under copyright law for UT Austin or any other building owner to prevent, or extract fees, for paintings and photographs of such buildings, either because they were constructed before copyright protection extended to buildings (as opposed to just plans) or because of the exception quoted above.

Other types of protection that could allow the extraction of a fee from the artist would usually be trademark issues.  University emblems will almost certainly be subject to such protection.  The issue of the burnt orange color scheme, however, is much more doubtful, especially after the decision earlier this month involving a similar issue around an artist’s use of Alabama’s crimson colors in the U.S. District Court for Northern Alabama.

So to return to the question of why the artist should pay this fee, one possible answer, I think, is that he wants to.  For paintings of buildings on the public property of the University, such a fee is probably neither required or enforceable, unless there are trademark elements included.  But the artist could have entered into a voluntary licensing agreement with the University, perhaps out of a sense of loyalty or fairness.  Or, of course, he may just be badly misinformed.  Unfortunately, we frequently encounter situations in which someone asks about a license in a situation where none is required and ends up paying an unnecessary fee.  Copyright owners (or putative owners) have little incentive to correct these misapprehensions.