A series of articles have been making their way around the Internet suggesting that taking photos of the Eiffel Tower at night could be a copyright infringement. Is this limitation real or hyperbole spewing from the overactive imaginations of the blogosphere? The answer depends on whether the Tower’s lighting is a copyrightable work of art or just a part of the structure. So before you allow the Internet to scare you away from taking the next iconic night photo of the Eiffel Tower, let’s take a look at copyright law and its effect on the 125-year-old French landmark.
Under the Copyright Directive Article 5, European Union countries can limit copyright protection for various types of works, including architecture, but are not required. In most EU countries, photos of public buildings or those buildings visible from a public place are permissible (see Copyright in Architectural Designs). Those photos can be published and distributed without permission. However, France, Italy, and Belgium have not instituted this limitation so right relating to architecture follow the laws of those individual countries. In France, laws surrounding architecture are comparatively restrictive.
The Eiffel Tower Copyright
The Eiffel Tower is no longer under copyright protection (aka in the public domain), which allows for photos of the structure. However, the lighting design is a recent addition and the Société d’Exploitation de la Tour Eiffel, the organization managing the structure, maintain that the lighting is an artistic work separate from the structure itself. As such, the artistic lighting is not in the public domain, and without the EU Copyright Directive providing limitations, French law prevails. According to the Eiffel Tower website, taking photos during the day is permitted, “however, its various illuminations are subject to author’s rights as well as brand rights. . . Usage of these images is subject to a prior request from the Société d’Exploitation de la Tour Eiffel.”
The international copyright treaty, the Berne Convention, provides protection for literary and artistic works, including “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.” Whether the lighting scheme is a separate protectable artistic work is debatable, but only the courts can make that determination. So for the purpose of this analysis, let us assume that the work has copyright protection.
The Rights Under the Berne Convention
The EU has a broad scope of rights including the:
- right of reproduction
- right of communication
- right of distribution
- right of fixation
- right of rental and/or lending
- right of broadcasting
- right of communication to the public by satellite
Those rights are much the same as in the United States. One cannot use someone else’s art prominently in photos without authorization as it violates the exclusive rights granted to the artist, even when the art is incidental to the photo. For example, American Eagle violated AholSniffsGlue’s exclusive rights when his street art was in the background of photos taken for an ad campaign. Any night shot of the Eiffel Tower, regardless of the fact that the primary focus of the photo may be the Eiffel tower itself, includes the artistic lighting and so is a copyright infringement.
There is one caveat, however; people can take night photos of the Tower for personal use. Much like the exception for recording movies on a home DVR, French law allow for personal tourist photos.
The Practical Side of Copyright Protection
Copyright allows an artist can stop anyone from using a work in violation of their exclusive rights. For the creator of the Eiffel Tower Lighting, that includes distributing the photos over the internet, selling the photos, uploading them to stock photos sites, placing them in magazines or posting them to social media.
If that is the case, then why are their thousands of night shots of the Eiffel Tower on the Internet? The answer is simple; having a copyright does not require that an artist enforce it. The rights can be used in any way the artist wishes.
Then to contemplate the boundaries for when we can safely use night photos of the Eiffel Tower, we must try to discover what uses the artist finds acceptable.
The following are purely opinions based on various factors, such as the current use of the photos on the Internet or the costs of litigation. The results are not meant to be hard rules users should follow, but instead as a guide who may find themselves standing in front of the Eiffel tower at night.
That being said; a search for “Eiffel Tower at Night” on Google will show over 24 million items. Copyright law aside, we would expect that an artist who creates such a prominent publicly displayed work would expect people to take pictures and distribute them around the web or on social media. Also, millions of tourists see the Eiffel Tower each year with only a small percentage having any ideas that the lighting is copyright protected. It is an anomaly for copyright protection to be attached to such an old landmark. Asserted copyright protection on the unsuspecting public would initiate a Public Relations nightmare for French Tourism.
As well, any assertion of those right would require at a minimum a cease-and-desist letter to each violator; a costly and practically impossible implementation. For those that do not heed the warning within the cease-and-desist letter, elevating those infringements to lawsuits would create an even greater public outcry as well as increased costs unjustified by the limited potential gain. A successful lawsuit allows the copyright holder profits gained from the use or damages such as lost licensing revenue. In most cases, the cost of a lawsuit far outweigh the returns. Just like those receiving Getty demand letters; the money Getty can receive from the vast majority of infringements does not cover the costs of filing a lawsuit, let alone litigating one.
Based on those assumptions, taking night photos of the Eiffel Tower to share with friends or post to social media, should not be a problem. Even minor commercial uses such as showing in a fine art gallery, uploading to non-rights managed stock photo sites or even as part of a book compilation is unlikely to warrant any legal action.
Where photographers should consider requesting approval is for commercial or high visibility uses. An Eiffel Tower night photo on the cover of Time Magazine could elicit a call from the Société as would use on product packaging or a movie poster. The risk of the Société initiating legal action increases dramatically when the infringement has high public exposure and high revenue. The penalties can be heavy; far less than any licensing fee.
So, if you are going to photograph the Eiffel Tower at night primarily for personal use or a use with limited economic value, then you are probably not going to get into trouble. However, for a commercial use, err on the side of caution or risk the wrath of the Société d’Exploitation de la Tour Eiffel.
I am sure some of you may have other opinions or advice for photographers that I have presented here, perhaps you are more informed about French copyright law than I am and could add to the discussion. If so, please let the readers know what you think in the comments section below.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.