Question: does the law allow you take a photograph of the Sydney Opera House and then sell that photograph to someone else?
Answer: maybe, maybe not ... depends on who you ask and who you listen to ...
Let me explain ...
During the week I was sent a link to WebMink, a blog run by Simon Phipps, where he writes about this dilemma:
Opera House, Dawn; Copyright policy, Night-time
If you're a regular reader, you may be aware that I sell some of my photographs for commercial use over on iStockPhoto. It's earns pennies, but I like the thought of actually heading in the direction of my aspirations.
Anyway,
I think this photo of Sydney Opera House is quite good, so I submitted
it to iStockPhoto. I've recently received a rejection from them on the
grounds that it would be a breach of Australian copyright law
to sell this image. When you consider that I can stand in public places
throughout Sydney and take photographs that include the Opera House,
this restriction seems pretty ridiculous.
Read it here. In the comments section following this post there is a letter from the Corporate Counsel of the Sydney Opera House (SOH), explaining that the Sydney Opera House Trust "vigorously protects the
commercial exploitation of its intellectual property and does not
approve use of the SOH brand in commercial contexts where there is no
association between the relevant business and SOH":
Dear Simon
Thank you for your inquiry dated 28 May 2007
regarding regarding publishing of Sydney Opera House (SOH) images on
the image library, iStockphoto. We understand that iStockphoto operates
an image library where members publish their photos which are then
licensed to third parties on a royalty-free basis. We welcome visitors
to the Sydney Opera House precinct to photograph, film or video images
for personal use only.
By publishing photos of SOH on a stock
library, such as iStockphoto, this would be commercial use of the SOH
brand (Commercial Use) and the use of our brand is something that we
take very seriously. Where photographs of SOH are sold or licensed by
you to third parties from iStockphoto for advertising, marketing
purposes and other commercial purposes, that would also be making
Commercial Use of the SOH brand.
Importance of SOH brand to Sydney Opera House
The
SOH brand is a very powerful brand and is well recognised all around
the world. This means that the brand is one of the most important
assets of the Sydney Opera House Trust. The Sydney Opera House Trust
manages the use of Sydney Opera House’s image and brand on behalf of
the New South Wales Government. The Trust vigorously protects the
commercial exploitation of its intellectual property and does not
approve use of the SOH brand in commercial contexts where there is no
association between the relevant business and SOH.
The Trust
does this for two reasons - first - to protect the integrity of the
brand and second, to protect its commercial value. As a non-profit arts
organisation, the Trust is heavily reliant on sponsorships to support
its operations and it offers brand association to sponsors of a certain
value. In all cases however a sponsor is only permitted to link its
product with the SOH brand in a manner that is approved by SOH and
which aligns with SOH brand values.
We hope that you can
appreciate that our image and exclusivity are our most valuable assets
commercially, so it is important that we protect them for ourselves and
our valued sponsors.
Commercial Use of SOH images
Where you
do not have any association with SOH at all, the Commercial Use of SOH
images by you may suggest that there is a connection or association
between you and SOH, where in fact there may be none. We would also
object to your licensing or selling SOH images to third parties as
their Commercial Use of the images would suggest those third parties
have an association with SOH, or have been authorised by SOH to use
depictions of the Sydney Opera House in promoting them and/or their
products or services - which may not be true. The Australian Trade
Practices Act 1974 (Cth) prohibits conduct which is misleading or
deceptive in this regard.
Intellectual property rights of Sydney Opera House
SOH
owns copyright in a large number of images of SOH (or has negotiated
permission to use those images from their owners). Some examples can be
found on our image bank at
http://www.sydneyoperahouse.com/sections/media_room/image_bank/?sm=5&ss=22.
These images of SOH may be used by the media but not for advertising or
other commercial uses.
SOH also maintains trade mark
protection for a large number of trade marks including representations
of SOH. Therefore, commercial use of certain images of SOH may infringe
SOH's registered trade marks.
Reasons for removal of your image
We
understand that some stock libraries remove infringing images posted by
their members, often generating an email (often automated) which lists
copyright infringement as the issue. Where your stock library removes
SOH images and notifies its members of the reasons for their removal,
we would prefer that those reasons refer to our intellectual property
rights generally (as outlined above) - rather than just copyright
infringement (which does not convey the range of intellectual property
rights and other protection SOH relies on). However we understand that
this is an issue for your stock library to amend. In this regard, we
will contact your stock library to inform them of the above.
Thank you for your inquiry and we hope the above information answers your question.
Regards
CAROLINE ANG
CORPORATE COUNSEL
SYDNEY OPERA HOUSE
Again, you can read it here. The SOH seems to be relying on their vague "intellectual property rights generally" rather than just copyright infringement. Presumably this is because Australian copyright law is clear; it is not an infringement of Australian copyright law to take a photograph of a building. See s 66 of the Copyright Act 1968 (Cth):
The copyright in a building or a model of a building is not infringed by the
making of a painting, drawing, engraving or photograph of the building or
model or by the inclusion of the building or model in a cinematograph film or
in a television broadcast.
Further, there is nothing in the Copyright Act that would make profiting from that photograph unlawful.
So, as it not a breach of Australian copyright law, it is necessary consider the other arguments advanced by the SOH in that letter.
First, the SOH argues that the law prohibits the commercial use of an image of the Sydney Opera House. In particular, the SOH suggests that such commercial use would contravene the Trade Practices Act 1974 (Cth). Section 52 of the Trade Practices Act provides:
(1) A corporation shall not, in trade or commerce, engage in conduct
that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in the succeeding provisions of this Division shall be taken
as limiting by implication the generality of subsection (1).
No definition of "misleading" or "deceptive" is given in the Act, so the meaning of those terms has been developed through case law. Generally, conduct is misleading or deceptive if it "leads into error" or is likely to do so. (For a good summary of the case law, see Equity Access Pty Ltd v Westpac Banking Corp (1989) 16 IPR 431 at 440-441 per Hill J.) The argument advanced by the SOG appears to be that the commercial use of an image of the SOH would suggest that Simon Phipps and/or iStockphoto has an
association with SOH, or has been "authorised by SOH to use depictions
of the Sydney Opera House in promoting them and/or their products or
services". In my opinion, this is a very tenuous assertion and the SOH would struggle to establish that a third party taking a photograph and then selling that photograph would give rise to such an association as I don't believe that it would be a commonly held assumption that you would need the permission of the SOH to take a photograph of the SOH. Furthermore, I think a similar conclusion would be reached under s 53(c)&(d) of the Trade Practices Act or the tort of passing off.
Second, the SOH argues that the "commercial use of certain images of SOH may infringe
SOH's registered trade marks". Again, using a photograph of the SOH is highly unlikely to cause confusion that that photograph was sponsored by the SOH. (See ss 43 and 120 of the Trade Marks Act 1995 (Cth).)
Basically, both the Trade Practices Act argument and the trademark argument depend upon the assumption that the commercial use of an image of the SOH connotes a connection, sponsorship or endorsement to or from the SOH. I don't believe that assumption could be established in court. Indeed, according to a recent article in The Australian newspaper, looking at whether Telstra could use images of Uluru and the SOH as part of its Second Life island, this argument has apparently never been tested in court:
Telstra hit over virtual Uluru
Simon Canning
May 24, 2007
TELSTRA
is being investigated by Uluru's administrators and the Sydney Opera
House Trust after cashing in on the images of Australia's two most
famous landmarks as part of its massive investment in the online world
Second Life.
Telstra's move is
focusing legal minds on the commercial use of images in the booming
area of virtual worlds, with thousands of Australians visiting
Telstra's virtual "island" - known as The Pond - each day.
And now tribal elders are also wrestling with the implications of
the sacred sites being used for commercial purposes online as
significant questions begin to emerge about famous landmarks such as
the Opera House, Sydney Harbour Bridge and Uluru being used in websites
and games.
The Sydney Opera House has also revealed it is investigating commercial exploitation on the Telstra site.
...
The Sydney Opera House Trust also keeps a tight rein on the
commercial exploitation of images of the building, which is one of the
most recognised in the world.
"We are looking into the use of the Opera House image on that
website at the moment and that's all we have to say," an Opera House
spokesman said.
"It's very new to us."
Tony Anisimoff, a partner at commercial and intellectual property
law firm Anisimoff Davenport Solicitors, which specialises in marketing
and advertising issues, said the whole issue of recreating iconic
buildings and sacred sites in commercial websites and games was a grey
and untested area.
Mr Anisimoff said that in general copyright only protected blueprints and not the buildings themselves.
"The law does not recognise any such thing," he said.
"I know the Sydney Opera House Trust does occasionally object to the
use of the Opera House and puts forward an argument that it's such an
iconic commercial building that its use in a certain context implies an
association, a sponsorship or an endorsement. But that sort of argument
has never been run in court."
Read the full article here. As I've outlined above, I think that that sort of argument is likely to fail. However, it is interesting to note the different legal position between Uluru and the SOH. The taking of photographs of Uluru for commercial purposes is regulated by the Environment Protection and Biodiversity Conservation Regulation 2000 (Cth).
To take photographs in a Commonwealth reserve for commercial purposes, a photographer needs to:
- Contact the Commonwealth reserve and obtain a permit to take photographs for commercial purposes by paying the specified fee and entering into a Location Agreement; and
- Abide by the conditions imposed upon commercial photographers in the reserve by the Director.
If a photographer breaches a Location Agreement (or does not enter into one), a ranger or warden may require
him or her to hand over all copies of any photographs taken and any camera or other device used to take them. (For more information, see the Australian Copyright Council Information Sheet G11.)
If the SOH wanted similar protection, it could lobby the Federal or New South Wales Government to introduce legislation or regulation that would prohibit the taking of photographs of the SOH for commercial use, except as authorised by the SOH. Interestingly, there is already a NSW regulation that prohibits the use of any "camera
(whether photographic, cinematic or video), for a commercial purpose" in a public area of the Sydney Harbour Foreshore, except as authorised by the Sydney Harbour Foreshore Authority. (See Reg 4(d) of the Sydney Harbour Foreshore Authority Regulation 2006 (NSW).) However, as the SOH is not part of the "Sydney Harbour Foreshore" as defined in the Sydney Harbour Foreshore Authority Act 1998 (NSW), this regulation does not apply to the SOH.
In conclusion, it seems to me that the letter from the Corporate Counsel from the SOH is largely legal bluster and bravado. Selling the photo to iStockphoto would not infringe Australian copyright law, and it is highly unlikely (although admittedly it has not been tested) to infringe either the Trade Practices Act or the Trade Marks Act. It is worth noting, however, that the SOH could in the future seek from government legislation or regulation that would restrict the commercial use of images of the SOH.
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