Modern Warfare Game Modder DMCA's Infinity Ward

Why Should You Have To Pay A Fee To Paint A Picture Of A Building?

from the royalties-gone-mad dept

Tue, Nov 10th 2009 11:40pm — Mike Masnick

This one's a bit old, but I'm cleaning out some older posts I wanted to write up. Sent in by johnjac, apparently the University of Texas charges a local painter a fee for selling paintings of its main building, the Texas Tower. While the Freakonomics post delves into whether this should be a flat fee or a percentage, shouldn't the actual question be why should the painter have to pay a fee at all?

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Filed Under: building, painting, trademark

45 Comments

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garfalk (profile), 10 Nov 2009 @ 11:54pm

fee?
wait. can't i take a picture of the same building for free
and then paint a representation of said photo?
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Pete Austin, 11 Nov 2009 @ 1:09am

You can't copyright this stuff
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Here's my picture of the tower. Yes, I know it's crap, but that doesn't affect the legal issue, which is that you can't copyright this stuff. Otherwise there would be no news TV, and possibly no society. Also I bet more people see my picture than his.
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chandan, 11 Nov 2009 @ 2:29am

payoff_think different
as that person who sold the paint is indirectly advertising that institution being an brand ambassador for that without any remuneration from them so actually the people in that institution has to pay him back a good amount i think so..........
chandan
bangalore
india....
chandan301@gmail.com
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lyndam (profile), 11 Nov 2009 @ 2:35am

Visbility of buildings.
I once worked on a doccumentary about the Mafia for Discovery. We took a wide pan shot of Manhattan from over the Brooklyn bridge. We could not use the clip in the program because Discovery's lawyers said we would need a signature from every visible building.
The USA has a lot of lawyers. Heaven has none.
Lyndam
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Anonymous Coward, 11 Nov 2009 @ 2:45am

i don't get this, why do i need the building's owners permission to take a picture or painting of the building, when reporters don't need permission to take a picture of me?
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Tino (profile), 11 Nov 2009 @ 3:04am

Paying to draw a building
Why shouldn't you pay? The design is copyrighted, architects have a hard life and they (usually) make nice buildings. Imagine how good he'd feel if you sent him a quarter and told him how nice his work was.
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- Jaws4theRevenge, 11 Nov 2009 @ 3:28am
  
  Re: Paying to draw a building
  Yeah, architects deserved to get paid for their work too, ya know! In fact, every time someone passes by a building they should have to pay a "visibility toll" to the designer in case they decide to take a look at the building, which was so much hard work for the poor, starving architect. If we don't institute this RIGHT NOW eventually no more buildings will be designed and built.
  
  Oh, wait...
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  - Rasmus, 11 Nov 2009 @ 4:27am
    
    Re: Re: Paying to draw a building
    ... its brilliant!!!
    
    This will be a boost to the economy because completely new revenue streams will be created. To look at a building you will have to obtain looking rights, just as the movie industry wants it to be, and of course the architect has an exclusive right to set a price for that right. And come to think of it the construction company has a right to collect royalty on the recording rights, and the buildings owner has a right to collect performance royalties.
    
    These looking rights could also easily be extended to anything visible, and that would really boost the economy and the rate of innovation in society.
    
    Of course this instantly creates a problem with piracy. Imagine the amount of illegal looking there will be in the world. I estimate some 6.796 billion illegal lookers.
    
    Just imagine how much stolen property this amounts to and what a huge loss in revenue for the rightsholders.
    
    We need mandatory gps-chips installed in all human bodies coupled with eye-ball tracking to detect infringement activities.
    
    I'm going to write some politicians about this.
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    - Ben (profile), 11 Nov 2009 @ 7:01am
      
      Re: Re: Re: Paying to draw a building
      "To look at a building you will have to obtain looking rights, just as the movie industry wants it to be"
      
      You're absolutely right! Plus once the building is used in a movie, you'll have to pay those looking rights on top of your movie ticket price, even though the movie producers would have paid a professional looking rights. "Hey, it's a 2nd performance" they'd cry "Architects gotta eat!"
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    - Anonymous Coward, 11 Nov 2009 @ 8:44am
      
      Re: Re: Re: Paying to draw a building
      Of course this instantly creates a problem with piracy.
      
      But that's good for the enforcement industry and helps it to grow. Think of the money that will generate for the economy!
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  - Clay, 11 Nov 2009 @ 8:50am
    
    Re: Re: Paying to draw a building
    As an architect, I fully support this movement. Although I think Frank Gehry should have to pay us to look at his buildings.
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RA, 11 Nov 2009 @ 3:53am

Property Release
As a clarification (rather than a defense of) why the painter pays, a release signed by the owner is required to publish or show any identifiable picture of any person, place or thing -- unless the use is editorial, i.e., in a newspaper, magazine, etc. as part of an article. The model-release rule is most strictly applied when a person's picture is taken, but applies to anything where ownership is involved. I know the rule is generally accepted practice, but I'm not sure what law it's based on. Once an image is made, the image-maker actually holds the copyright to the image.
It sounds like the University is only providing the release on the basis that it gets paid. You could do the same thing if anyone want to make a picture of you, your pet, your house, car, or even your dirty socks!
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- Lets be a dic about a pic, 11 Nov 2009 @ 5:04am
  
  Re: Property Release
  Whoa, NASA is so screwed /s
  
  Simple observation leads to the conclusion that your assessment is somewhat lacking.
  
  I'm sure that movie producers go door to door throughout any major city which happens to be in their movie, and get everyone to sign to a release.
  
  Every so often, most states update their tax assessment of homes. Many states include a picture of your home. I suppose you could attempt to charge them, but I doubt you would get very far.
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- Anonymous Coward, 11 Nov 2009 @ 8:46am
  
  Re: Property Release
  As a clarification (rather than a defense of) why the painter pays, a release signed by the owner is required to publish or show any identifiable picture of any person, place or thing -- unless the use is editorial, i.e., in a newspaper, magazine, etc. as part of an article.
  
  Did someone actually tell you that or did you make it up all on your own?
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Timthetoolman, 11 Nov 2009 @ 3:54am

Heh
What really? People who are actually for this are retarded. If it were popular, how often would you see manhattens skyline in a video or film? You'd need to go to millions of buildings and ask each one for permission! HAHAHAH!
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Anonymous Coward, 11 Nov 2009 @ 4:06am

Tower
They're probably trying to make-up for the fact that the sniper in the 1960's didn't pay a fee.
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John Doe, 11 Nov 2009 @ 4:13am

Same with the Space Needle
The Space Needle in Seattle is the same way. You can take a picture of the skyline of Seattle that includes the Space Needle and you are fine. If you take a picture of the Space Needle only and try to sell it you are violating their copyright on it.

As an amateur photographer, I think that is a bunch of crap. Copyrighting a building is completely stupid. If enough of them were copyrighted you would hardly be able to take a city picture without having to get a folder load of releases. And by the time you paid the rights holders you would have to sell the photos for tons of money just to break even.

We have absolutely gone to far with the IP thing. Sadly we appear to be pushing even further down that path.
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- really ?, 11 Nov 2009 @ 5:13am
  
  Re: Same with the Space Needle
  IIRC, the needle was built for the worlds fair. It is entirely possible that public funds were used in its design and construction. Therefore, such copyright silliness is bs. Is this an incorect conclusion?
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- Christopher (profile), 11 Nov 2009 @ 6:05am
  
  Re: Same with the Space Needle
  I would just release the images into the public domain until they cried "Uncle". This is what torrents are for.
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Tino (profile), 11 Nov 2009 @ 4:50am

Looking at a building can't be regarded as copyright infringement because you haven't really made a copy of anything.
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- Joeinsuffolk, 11 Nov 2009 @ 6:07am
  
  @Tino: Actually, your brain makes a permanent copy in memory of everything you see. You remember it, but not actively. It's all there, just not always so accessible. In this case, it would have to be proven that you saw the building in the first place.
  
  Holy crap, just how many illegal copies of films, music, tv shows, etc do I have stored up there??? I'm in deep crap if they decide to prosecute...
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  - Anonymous Coward, 11 Nov 2009 @ 8:51am
    
    Re:Joeinsuffolk
    As soon somebody invents those memory-wiping things like in the movie "Men in Black," they'll post guards outside of every recognizable building wiping people's memories if they don't pay a looking license.
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- Rick Horowitz, 11 Nov 2009 @ 6:26am
  
  Re: Copies
  Really? How did the image get into your head? You have a memory of the image right? If you close your eyes, you can see it.
  
  Stop trying to avoid paying you fair share!
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Harold Belbin, CISSP, 11 Nov 2009 @ 5:03am

Why should anyone pay? Google Street View does not.
So by train of thought
anyone who takes a picture of anything that is owned first needs to get permission to use it and then possibly pay for the ability to publish it.

So when does Google start getting permission to photograph the world in Street View?
How do I get paid for the photo of my house that shows up in Street View?

I am sure we are missing something here...as I have not received my check yet.

Bordering on the silly. If you do not want me to take a photo...cover it up.
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Palmyra (profile), 11 Nov 2009 @ 5:20am

The "University of Texas" is a state institution and thus the building is owned by all the people of Texas. So in my non lawyer way of thinking UT needs to send a check to every citizen of Texas for his/her portion of the fee.
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David, 11 Nov 2009 @ 5:46am

Trademark
I am not a lawyer... However I believe that certain buildings are trademarks and thus protected - the Transamerica Building would be one such. Other than that architecture is not (yet) protected by some kind of IP.
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- Moron In A Hurry, 11 Nov 2009 @ 6:21pm
  
  Re: Trademark
  I would so get confused between a real building and a picture.
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Anonymous Coward, 11 Nov 2009 @ 6:10am

Joeinsuffolk
The surgeons will be by later to remove the illegal copies.
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Benjie, 11 Nov 2009 @ 7:08am

Good comparison
Someone above made a great point. If you can't make a painting of the building, then this rule should apply to all buildings/houses/etc. Since the painting is just a pictorial representation of a real object, then anything that replicates the visual representation of a building should fall under this, including Cameras, Video recordings, etc.

So now you can not take pictures, video record, or paint anything that may involve a building/house/etc in the scene without prior written consent of the builder and owner.
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La La, 11 Nov 2009 @ 7:13am

How?
Doesn't copyright protect the EXPRESSION of an idea? Not the idea itself? How can a painting of something infringe on the expression of an idea which is a physical expression?

I landscaped my yard... is the government and google infringing on my copyright when they take satellite photos?
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Benjie, 11 Nov 2009 @ 7:35am

Agree
I agree. Copyright infringements should also apply to "remembering". This would make Copyrights seems stupid and we'd have to rework them. The human eyes and memory should be considered exactly the same as any other analog recording device.
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Anonymous Coward, 11 Nov 2009 @ 8:25am

Proposed solution
If this is about the architects, wouldn't it make sense to like (this is gonna sound crazy, but stay with me) pay them up front under work-for-hire terms? I mean, that way all these imaginary architects who apparently work for nothing up front on the promise of painting royalties on the back end wouldn't have an imaginary problem eating.
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- Anonymous Coward, 11 Nov 2009 @ 9:06am
  
  Re: Proposed solution
  No, they should be paid both ways, like as musician who gets paid to perform at a concert and then gets paid additional royalties on recordings of the concert. Or maybe like a writer who gets paid both an advance and royalties on copies.
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  - Anonymous Coward, 11 Nov 2009 @ 9:11am
    
    Re: Re: Proposed solution
    And the payments should continue indefinitely, to his children, grandchildren, great grandchildren and so on in perpetuity.
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Richard Hussong (profile), 11 Nov 2009 @ 8:53am

it may be a private-property issue
According to http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter12/12-d.html, a release is not generally needed, even for a "trademark" or copyrighted building, so long as it is visible from a public place. They cite a federal appeals court decision: Rock and Roll Hall of Fame v. Gentile, 134 F.3d 749 (6th Cir. 1998)

If the painter had to be on UT property to view the tower as painted, UT may have the right to charge him; otherwise, definitely not (as long as that decision stands).
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- matt, 11 Nov 2009 @ 11:32am
  
  Re: it may be a private-property issue
  I think this is a PUBLIC property issue. Namely, U.T. is a publicly funded school and thus its tower should also be considered state property.
  
  Also you do not need to be on school grounds to view the most iconic angle of this tower-- you can get that angle from the street.
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Anonymous Coward, 11 Nov 2009 @ 8:57am

Is this really so outrageous?
I suspect if you look into more detail at the circumstances of the artist's sale of this painting, some sort of trademark claim will seem pretty reasonable here.

The sole subject of the painting is the university's most iconic building. If you go to the UT Austin web page, the logo at the top of the page is indeed of that building. I imagine a moron tourist in a hurry might think that the paintings for sale of the building were university merchandise (as indeed they are, thanks to the license). A painting of some similar building in a similar shade of orange could fool such a moron tourist (as could, say, a shirt that just said "Austin" but in the university's colors).

Note that Wikipedia has numerous photos of this building, taken by an individuals and released under CC licenses. There is no trademark claim there because Wikipedia is clearly not trying to peddle counterfeit UT Austin merchandise.

By contrast, the images of the Eiffel Tower at night on Wikipedia are marked for deletion because under French copyright law, the nighttime lighting is subject to copyright. As far as I know, that would not be the case in the US (obligatory doom and gloom: at least not yet).
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Anonymous Coward, 11 Nov 2009 @ 9:23am

Color, Too!
The article says the artist must also pay the university a fee for making paintings of *anything* with burnt orange color in them. (I wonder if they're going to sue me now for writing "burnt orange"?)
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- painter, 11 Nov 2009 @ 1:47pm
  
  Re: Color, Too!
  cadbury tried to patent the colour purple,as a symbol of its rich choclate. It failed- purple has a bit of history the emperors of Byzantium and ancient rome were fond of its symbolic richness- , is a colour patentable in the US?
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JustMe, 11 Nov 2009 @ 10:47am

Isn't U of T a public institution?
So didn't tax dollars pay for the tower?
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OC, 11 Nov 2009 @ 11:00am

Agricultural impact
Every time you look at a building a corn farmer die!
Please think of the pop-corn.
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painter, 11 Nov 2009 @ 1:57pm

merde!
Whenever copyright wanders away from the actual sale of --Copies--- it gets wieird and very suspect. Is a picture of a building a copy of the building? Can you live in a picture of a building?
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Anonymous Coward, 11 Nov 2009 @ 7:21pm

It's a bit of a leap to say that just because you remembered something you made a copy of it. If that were true, why would we say some people have a "photographic memory"? If that's what they have, what about the rest of us?

I think you'd have a hard time convincing a jury that there is an actual "copy" of an image in my head. How would you even begin to prove it? I could admit to "recognizing" a building, for instance I might remember that it was purple and tall, and when I see it I'd say, "Oh yeah, it's purple and tall so that must be it". But that's a long way from saying there's a little photograph floating around in my head

In fact, if our memories were always making little images, how would you ever recognize someone you haven't seen in ten years?
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- painter, 12 Nov 2009 @ 1:19pm
  
  Re: memory ect
  You might find Norman Doidge's -The Brain That Changes Itself
  helpful on this subject. re-presentation is what its all about.
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mike penney, 1 Nov 2011 @ 1:27pm

rights to photograph buildings
First, there is a lot of wrong information on this board.

Essentially buildings do not have rights. Take all the pictures you want of them.

There are very few actual restrictions on taking photos in the United States. Basically if you can stand on a publicly owned piece of property and see something you can make a photo of it and pretty much do what you want with it.

Top secret property covered by specific laws or executive orders (Department of Energy) and private property are different. I photograph a lot of shopping malls... I get a letter from the owner telling whomever that I can be there and the issue becomes moot.

All the restrictions around New York against taking pictures of bridges and whatever are unconstitutional and are not supported by any federal law. I think New York City enacted some ordinances but they are unenforceable, because they are illegal. The New York city police department is about as corrupt as any anywhere so you can expect trouble due to arrogance and paranoia. But they don't have a legal leg to stand on.

Architectural copyright does not include photographs or drawings of buildings; specifically it says so in the law.

Trademark law is different. If you want to take the Space Needle or the Transamerica building or other trademarked building and use it as your logo or iconic symbol in your advertising you are going to have problems... just like using Disney's stuff for your own commercial use.

ASMP has done a nationwide study of laws and court cases in the US about photographing buildings. Basically there are none preventing you from photographing stuff you can see walking around like a regular citizen.

One of the ways cities have tried to restrict people is requiring permits for parks and sidewalks and requiring million dollar indemnification policies for photographers. This just results in photographers playing the hit and run game... shooting and moving to avoid getting caught. For example, Seattle Parks department used to require everyone to get a permit to make photographs.... then someone challenged the administrative rules.... Now, you are free to exercise your "constitutionally" protected rights to "expression" by making photographs in the parks.

However, you are not constitutionally protected to go into the park and set up a photo shoot with a wedding party, models, or products.... Because that's not what parks are normally for and you would be restricting someone elses's use of the park. So you solve that problem with money in the form of a permit.

Ditto for federal Parks. The ruling currently is that you may make photos for any use if you are in a normally traveled part of the park and don't create a problem for landscaping, other users, or wildlife.

Except Washington DC, which has decided that you are evil if you use a tripod. I haven;t looked into what the fees are to get around this. Just tell them you a video taping a political commercial and they will probably have to leave you alone since that would be really crushing your rights to stop you.

Federal Buildings, and rail roads (Amtrac) are ok to photograph. A recent court case about a federal court house and another involving a public settlement surrounding an Amtrac sponsored photo contest have put into writing instructions for security to "leave people alone".
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