Your building, but whose photograph?

You want to do some marketing – can you use images of work done in a former firm?

The law of copyright tends to raise a great many questions from architects. By far the most common is about the use of images of an architect’s projects carried out in a former firm. Either:

  • an architect wants to know if they can use photos of buildings they’ve worked on in the past to promote their new practice; or
  • a practice wants to know if it can stop a former employee using photos of its projects.

The first and practical answer is to talk: ask the other party, and if they agree to your request, bob’s your uncle.

But if they don’t, what’s the legal position?

Copyright, a notoriously complicated area of law, is a specific, statutory, example of the generic term ‘intellectual property rights’ (the other major ones being patents and trademarks), and it protects the results of an artistic (in its broadest sense) endeavour. So this includes, for example, drawings, sketches, plans and photographs.  

Copyright does two things. It entitles the owner to:

  • prevent anyone else using the work without the owner’s consent; and
  • make any use of the work the owner wishes, including adapting the work in any way.  

So the first question is: who is the owner of the copyright in the work?

The first owner is usually the creator of the work, but that’s not the case where the creator is an employee acting in the course of their employment. In that case the owner of the copyright in the work is the employer.

So, where the architect is an employee, then unless their contract of employment provides otherwise, which would be very unlikely, all the copyright in the works done by the architect would belong to the practice. That covers the drawings, but what about the building itself?

Well, making a three-dimensional version of a two-dimensional work is a restricted use of the work, requiring consent, and the building resulting from the drawings (as a ‘work of architecture’, qualifying as an ‘artistic work’) is thereby protected by copyright, which belongs to the owner of the copyright in the plans.

However, the law specifically allows any photographs to be taken of a building without infringing copyright. It’s sometimes thought that this exception only applies to photos taken from a public place, but that’s not so: the exception applies to models of buildings if ‘permanently situated in a public place or in premises open to the public’, but it applies to all buildings wherever they are.

But copyright subsists in the photograph, too, so in using any existing photo you need the consent of the copyright owner. That will be the practice that commissioned the photo only if the photographer assigned their copyright to the practice; if not, the copyright will remain owned by the photographer. In that case, the practice, as the commissioner, will have an implied licence to use the photograph for all purposes for which it was originally commissioned, but that would probably not extend to use by anyone other than the practice. That means, to use an existing photograph, an architect would need to get the permission of either their former practice or the photographer, whichever one owns the copyright in the photo.  

However, you could avoid having to do that by taking advantage of that copyright exception mentioned earlier: you could always obtain new photographs of the building without infringing any copyright.

If you do this, try and secure from your photographer an assignment of the copyright in the photographs to give you full rights to use them and prevent others using them without your consent. Failing that, remember that even by default you will obtain a limited implied licence to use the photos, but you should try and obtain an express licence granting you as wide as possible rights to use them.

While new photographs of the building won’t infringe any copyright, you must ensure you properly credit the practice as the owner of the copyright in the building (see below); and you would be wise to ask the client’s permission as a courtesy.

Use of images by the client

The second most common area of contention is around the use of images by the architect’s client. Typically, the question concerns how the image is credited.

If the client is using photographs supplied by the architect then the architect will either be the owner of the copyright in the photograph (having either created the photo themselves or taken an assignment of copyright from the photographer) or be licensed to use the photo by the photographer.

In the former case, the architect can control any use of the photo and insist that it be used only with a particular credit. If it’s the latter, then any control will depend on the nature of the licence.

So even if you find it impossible to get the photographer to assign to you the copyright, it’s important to ensure that the photographer agrees in a licence that they won’t license (ie allow) others to use the photos without your credit. 

What if a client, or other third party such as a contractor or manufacturer, uses its own photograph of the architect’s building?

Even if you don’t own the copyright in the photograph, as the architect you are still, as mentioned earlier, the owner of the copyright in the building as a work of architecture.

That means, on the face of it, you can prevent unauthorised use of the work, and taking a photograph without your permission would be such a use. But we come back to that specific defence in law that allows anyone to take photographs of buildings without infringing copyright. So in fact you wouldn’t be able to prevent photos being taken or published of your building.

However, as the owner of the copyright in the building you also have statutory ‘moral rights’ in the work. And one of those rights is the right to be identified as the author of the work. That means you would be able to insist that whenever a photo of your building is published it credits you as the designer.

Darren Heath is a solicitor and the RIBA in-house lawyer