Re: information regarding copyright of photographs in other countries

[Kevin L Smith <kevin.l.smith@xxxxxxxx>]

Regarding a photograph of an architectural work that is itself protected 
by copyright, we should recognize that U.S. law provides an explicit 
exception for that situation in section 120 of the Copyright Act (Title 
17).  The exception permits that distribution and public display of photos 
taken of a protected work of architecture that has been built as long as 
that building is "normally visible from a public place."  Under the rule 
of national treatment, it seems that that exception would permit a US 
photographer to display her photos on a US server; the exclusive right in 
the foreign works (of architecture) is limited in the US in just the same 
way as it is for US works.

Kevin 





Kevin Hawkins <kevin.s.hawkins@xxxxxxxxxxxxxxxxxx> 
02/03/2010 12:33 PM

To
Kevin L Smith <kevin.l.smith@xxxxxxxx>, digital-copyright@xxxxxxxxxxxxxx
cc
Marsha Zavar <mlzavar@xxxxxxx>, "'Deanne Peterson'" <dmpeters@xxxxxxx>
Subject
Re: information regarding copyright of photographs in other    countries






I agree with all of the corrections Kevin Smith offered but will add a 
few things.

I want to reiterate that we need to distinguish between copyright in the 
photographic image (the creativity involved in choosing the camera angle 
and light exposure) and copyright in any other works that might be 
portrayed in the photographic image (like a piece of architecture or, 
possibly in the case of Egypt[1], a work of cultural heritage).

US citizenship does not guarantee copyright protection to works taken 
abroad by US citizens.  If a US citizen is resident abroad and first 
publishes the work abroad, US copyright protection would not extend to 
the works.  (See Copyright Circular 1 from the US Copyright Office.) 
However, you're talking about publishing them in a US institutional 
repository, so US copyright law determines what is legal to publish in 
that repository.

My only concern in this case is with any photographs of works of 
architecture.  If any of these are protected by copyright in a country 
with which the US has treaty relations, they are likely also protected 
in the US.  There's a remote possibility she would be found in a US 
court to have infringed on the copyright in such a work, assuming the 
architect (or other rightsholder) bothered to bring suit in the US.

I am not an attorney, so this does not constitute legal advice.

Kevin Hawkins

[1] http://news.bbc.co.uk/2/hi/middle_east/7160057.stm