We post. We blog. We tweet. We pin. We share. We infringe. Posting images and video online through various channels of social media is part of daily life for many Americans. When we view a work of art that captivates us, we may feel a compelling urge to share that image—and that feeling—with the rest of the world, whether it is for aesthetic interest, educational value, or simple curiosity. Art has the tendency to captivate because it quite often evokes emotional responses. We feel something when we experience a connection with a work of art, and we naturally want to express to others how it makes us feel. Whether art inspires, brings pangs of nostalgia, rouses self-reflection, induces curiosity and an urge to learn, or just simply brings happiness to the viewer, art enables and promotes communication and discourse.
With mobile devices featuring powerful digital cameras and always-on broadband Internet access in the majority of the U.S. population’s pockets and purses (and backpacks), technology has given us that ability to communicate and “share” with the entire world. Now with just a few taps on a mobile device, a photograph or video clip can be taken and distributed to thousands (perhaps millions) of others instantaneously. This is happening every second of every day. It’s happening right this moment. Because of this “exponential growth in consumer image creation in public spaces and mass distribution of the resulting images via the [I]nternet, laws that restrict the taking or distribution of photographs in public places have become more burdensome on creativity than when originally enacted.”1
A Historical Perspective of Online Dissemination
Dissemination of images and video in the digital realm now occurs on a scale hardly imaginable just 20 years ago. For historical perspective, consider that in 1997, posting a photo or image on the World Wide Web (as it was then commonly referred to) required access to a camera, an expensive flatbed scanner, and a personal server, and the entire process from snapshot to dissemination online could take a day or two. One would take a photo, have the film developed and prints made, scan the print on a flatbed scanner to digitize it, use photo editing software to compress the image and lower the resolution (a necessary step because of the prevalent 28.8 and 33.6 kbit/s dial-up modem speeds in 1997), then email the image to others as an attachment, being mindful of attachment size and mailbox storage limits. Those on the cutting edge of technology who desired wider online dissemination would upload the compressed image to their own server, create a URL for the uploaded image, then disseminate the URL in visual form via code in HTML on their own or others’ websites. Uploading audio and video were even more complicated. Twenty years ago, there were real and substantial technological hurdles to overcome in order to post online. With today’s technology, there are virtually none.
Not only has the ability to post online increased, but so also have the number of outlets, through which one reaches the world. Twenty years ago, the largest social network was arguably GeoCities, a site where users could create their own web page with a personalized URL and interact with other users of the service. Other socially oriented services on the World Wide Web at the close of the 20th century included BBS (bulletin board systems), Usenet, special-interest electronic mailing lists, news groups, and chat rooms. Very few of these early socially oriented services have remained popular with the mainstream population in 2017, and none actually compete with today’s dominant social networks such as Facebook, Instagram, Twitter, Yelp, Pinterest, Tumblr, and many others. The very first widely available free chat app, AOL Instant Messenger (which was released in 1997), officially shut down on December 15, 2017.2
Changing Norms in an Evolving Digital Landscape
The digital landscape has clearly evolved, but the law has not yet adapted.3 With today’s mobile devices and mobile broadband Internet access, anyone can snap a digital photo or record digital video anywhere and disseminate it (literally everywhere and to everyone) in mere seconds. Such technology has dramatically increased the ease and prevalence of online communications, as well as infringing activity of copyrighted works related to such online communications in spaces open to the public, such as archives, libraries, art galleries, festivals, and museums. But should the online posting of images containing copyrighted works, such as fine art, sculptures, and other works of visual art, continue to be construed as infringement in today’s digital environment? Social norms surrounding posting content on the web would tend to suggest that the answer is an emphatic “no.”
This is not the first time social norms and copyright law have fallen out of sync, as the law has been down this path before. In 1984, the United States Supreme Court weighed the potentially disruptive effects of home video recording technology on copyright law. The reconciliation back then was the advent of the concept of “time shifting.” Sony’s Betamax allowed consumers to time-shift television programs by recording them and watching them at a later time. The United States Supreme Court observed:
From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment—the printing press—that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.”4
Today, it would appear that society may be on that cusp of change once again. “As individuals increasingly create and share content in the form of blogs, podcasts, wikis or videos, existing copyright exceptions become increasingly inadequate to cover their role as creators of knowledge.”5 Accordingly, it may be time for Congress to fashion new rules that new technology made necessary.
New Rules: Freedom of Panorama
The last time technology (namely home video recording technology) moved copyright law, reconciliation came about because of the advent of the concept of time shifting. But this time, the possible disrupters of copyright law are mobile devices, mobile broadband, and the proliferation of social media outlets. These disrupters have changed the way we live our lives online, interact, learn, communicate, and share with the world. One way to reconcile the evolving digital landscape and online social norms with copyright law would be to expand “freedom of panorama” in the Copyright Act to include works of visual art located in public spaces.
Freedom of panorama is an exception to claims of copyright infringement for reproductions of copyrighted works in public spaces. It has been said that freedom of panorama is “the right to take photographs of public spaces and use such photographs for personal or commercial purposes.”6 Freedom of panorama is an exception to infringement, not a defense; but unlike fair use and de minimis use, which are defenses to infringement actions, freedom of panorama is a “fairly bright-line range of photographer rights that . . . often [apply] even before fair use becomes an issue.”7 As an exception to infringement, freedom of panorama would function as a bar to litigation rather than as an affirmative defense to it.
Freedom of panorama is generally recognized throughout the European Union (EU), albeit to varying degrees within each member state. This is because EU rules let individual member states decide whether and to what extent freedom of panorama applies within their borders8 to “use of works, such as works of architecture or sculpture, made to be located permanently in public places.”9
In Germany, for example, freedom of panorama broadly exempts from infringement “works located permanently in public roads and ways or public open spaces,”10 with an exclusion for the interiors of buildings. Germany’s law applies to both commercial and noncommercial uses of copyrighted works.
Hungary, as another example of a broad approach to freedom of panorama, allows reproduction and use of “fine art, architectural and applied art creation erected with a permanent character outdoors in a public place . . . without the authorization of the author and paying remuneration to him.”11
Estonia, as an example of a more restrained approach, does allow reproduction of “works of architecture, works of visual art, works of applied art or photographic works which are permanently located in places open to the public, without the authorization of the author and without payment of remuneration,”12 provided that such use is not the main subject of the reproduction or for direct commercial purposes, and the author (if known) is credited in any dissemination. Estonia’s law places certain restrictions on scope of use and requires attribution but otherwise appears to apply to works in public spaces, whether such works are located outdoors or indoors such as museums and galleries.
Greece also is an example of a restrained approach to freedom of panorama in that its law allows the “occasional reproduction and communication by the mass media of images of architectural works, fine art works, photographs or works of applied art, which are sited permanently in a public place . . . without the consent of the author and without payment.”13 Greece’s law applies broadly to copyrighted works but restricts freedom of panorama to the occasional reproduction and communication by members of the “mass media,” but it ostensibly excludes individuals. Greece’s law does exempt from infringement the public display of works of fine art owned by museums, when such works are displayed on museum premises or at exhibitions organized by them.14 It also allows museums to reproduce works of fine art they own, “provided such reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interest of the author.”15
France and Italy, as examples of the most restrictive approach to freedom of panorama, do not have any provisions in their copyright laws addressing freedom of panorama.16
In the United States, freedom of panorama is only narrowly recognized under the Copyright Act. Here, it only applies to architectural works.17 Under this narrow recognition of freedom of panorama, a copyright holder in an architectural work may not “prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”18 Because freedom of panorama applies to architectural works, anyone may photograph a building or city skyline from a public space and not be liable for copyright infringement to the copyright holder of the building’s design. The current scope of freedom of panorama recognized by the Copyright Act is not broad enough to recognize the myriad ways the public today creates and shares content online, and therefore Congress should begin to expand the scope of 17 U.S.C. § 120(a) to include more than just architectural works.19
A Reconciliation to Reflect a New Digital Reality
To reconcile today’s accepted social norms of content creation and online sharing with the present Copyright Act, Congress should give serious consideration to expand freedom of panorama to exempt from infringement: (1) reproductions of works of visual art, photographs, and architectural works (2) located in spaces held open to the public.
Freedom of panorama is rooted in the notion that if a work is put forth to the public for the public’s aesthetic enjoyment, education, or enrichment, then the public should be able to make reasonable reproductions of such work in furtherance of that purpose. Allowing commercial use under an expansion of freedom of panorama would arguably be the most controversial portion of any legislation because it would tend to neutralize, at least partially, the limited monopoly granted to rights holders to commercially exploit their copyrighted works. However, commercial use is already allowed under the current recognition of freedom of panorama under the Copyright Act (discussed infra).
Further, a countervailing consideration in favor of commercial use in certain instances is the inherent ambiguity in relying on fair use or de minimis use of copyrighted works in a commercial project where a copyrighted work is part of the image or film sequence but is not the focus. In practice, reliance on defenses such as de minimis and fair use has not worked well for the public because such defenses are decided on a case-by-case basis and often involve litigation (or the threat of it) at some level. As a result, we have seen in the past that “many documentary filmmakers and photographers have been coerced into paying licensing fees as a form of self-insurance against potential lawsuits.”20 As de minimis and fair use are decided in courts on a case-by-case basis with no certainty of outcome,21 a freedom of panorama exception would tend to relieve the unintended chilling effect current law has on discouraging an individual’s reliance on such defenses to infringement.
In addition to the ways today’s technology has changed the way we communicate, express ourselves, and share experiences with each other, learning and education has also evolved. Photographs, sculptures, fine art, and other works of visual art as mediums of expression have always generally held educational value—some more, some less—and have served to highlight contemporary issues of interest to the public and promote discourse surrounding those issues. These mediums of expression are being utilized today in their digital form in massive open online courses (MOOCs). MOOCs are a digital evolution of distance learning held by well-known universities and nonprofit organizations, and are generally open to the public for no cost or a fraction of university tuition. As the New York Times has indicated, “MOOCs have become highly popular in the last couple of years . . . . Depending on the platform, students may be able to watch top-quality lectures and tutorials online, contribute to discussion boards and take computer-graded tests. There are no admission requirements, no scheduling clashes and no, or low, tuition costs.”22
MOOCs rely on digital content and are frequently found on third-party commercial Internet platforms.23 Social media services running on their own platform such as YouTube and Vimeo also host educational content provided by their users. MOOCs, as low- or no-cost educational programming created by universities and nonprofit organizations, generally do not generate sufficient revenue to pay for licensing fees for content that would enhance their educational objectives. There is currently no compulsory licensing scheme in the Copyright Act that applies to works of visual art which would tend to regulate licensing fees, as exists for sound recordings. And because MOOCs are online and digital, all MOOCs are unable to benefit from the “face-to-face” teaching exception to infringement provided in the Copyright Act,24 and MOOCs that are not offered as a regular part of the instructional curriculum and not presented by an accredited nonprofit educational institution are unable to benefit from the digital transmission exception.25 There clearly is a gap between the spirit of the Copyright Act and its application to online learning. Promoting digital access to publicly displayed copyrighted works of fine art, sculptures, and other works of visual art by expanding freedom of panorama beyond architectural works under the Copyright Act would close these gaps where such copyrighted works are used, promote the objectives of the Copyright Act, and offer another layer of “safe harbor” protection against liability for the platforms that host MOOCs and user-generated educational content.26
Harmonization with Other Areas of Law
As discussed, expanding freedom of panorama under the Copyright Act to include fine art, sculptures, and other works of visual art displayed in public spaces would go far in reconciling today’s technological advances and accepted social norms of content creation and online sharing with the current Copyright Act. However, it will need to be harmonized with other areas of law in order to be fully effective, including the following.
Like freedom of panorama, moral rights are narrowly recognized under the Copyright Act through the Visual Artists Rights Act of 1990 (VARA).27 VARA was enacted to bring the United States into compliance with the Berne Convention when it was made a party to it through the Berne Convention Implementation Act of 1988. Entire books can be devoted to discussion of moral rights, but briefly, for the purposes of this article, moral rights are certain inseparable rights a creator has in his or work that are independent of the economically oriented rights granted under the Copyright Act. This means that even if the creator sold his or her work, then assigned his or her copyright to the work, the creator would still retain his or her moral rights to the work despite not having physical ownership or copyright to the work. These inseparable rights generally include the right to claim and disclaim authorship, to prevent any intentional mutilation or modification of the work, and to prevent destruction of the work.28
VARA applies to “works of visual art” as defined by 17 U.S.C. § 101. An installation in a public space, such as a painting exhibited in a building open to the public, an outdoor sculpture, or a mural on a building, would likely be subject to VARA. VARA’s moral rights provisions allow authors to object to certain uses of their work that they find repugnant or damaging to their reputation. Any expansion of freedom of panorama would likely have to yield to VARA’s moral rights provisions because those rights are inseparable from the work and stay with the creator notwithstanding changes in physical ownership or assignment of copyright.
One benefit that expansion of freedom of panorama would have with regard to VARA is elimination of a conflict between 17 U.S.C. § 106A and 17 U.S.C. § 120(a) under certain circumstances. If a work of art is incorporated into a building (such as a sculpture or a mural), there arises an ambiguity as to whether that work of art is part of the architectural work and thus subject to the freedom of panorama provision in 17 U.S.C. § 120(a). Courts have used two forms of “separability” tests—physical separability and conceptual separability—to determine whether the work of art can stand on its own or is an inseparable part of the architectural work.29 If freedom of panorama is expanded, then determination of whether the work of art is considered part of an architectural work for freedom of panorama purposes becomes irrelevant because freedom of panorama would apply regardless of the work’s status as a part of an architectural work or as a standalone work of art.
Expansion of freedom of panorama may also require harmonization with trademark law in order to prevent rights holders from attempting to use trademark law to block otherwise legitimate uses of works of art. Such an attempt has happened before under the Copyright Act’s existing freedom of panorama provision. In Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Productions, professional photographer Charles Gentile photographed the Rock and Roll Hall of Fame and sold posters of it.30 The museum owned the registered service mark “The Rock and Roll Hall of Fame” and sued Gentile for infringement of its service mark—as well as infringement of the “distinctive” design of the museum’s building itself, which it claimed prior use as a trademark. In formulating its case strategy, the Rock and Roll Hall of Fame attempted to circumvent the freedom of panorama exception by claiming trademark infringement. Holding that the Rock and Roll Hall of Fame’s building did not serve “as an indicator of source or sponsorship,” the Sixth Circuit found that Gentile’s work was a photo of “an accessible, well-known public landmark.”31 Whether another circuit may have achieved a different result is at this time unknown. Thus, the best way to ensure consistency in resolving trademark and copyright conflicts with regard to freedom of panorama is to make harmonizing changes in both bodies of law as appropriate and necessary.
Expanding freedom of panorama under the Copyright Act would ensure that the copyright fiasco that currently prevents the public from photographing the Eiffel Tower at night would never happen in the United States. The Eiffel Tower was constructed in 1889, and copyright in its architectural design has since fallen into the public domain. However, the Eiffel Tower’s operating company, the Société d’Exploitation de la Tour Eiffel (SETE), installed a pattern of lights onto the tower and holds copyright to it as a work of visual art. In effect, SETE strapped a copyrighted work of visual art onto an architectural work in the public domain, thus preventing anyone from legally photographing the Eiffel Tower at night without a license.32
Harmonizing expanded freedom of panorama with existing copyright law may require certain changes to provisions relating to educational and architectural provisions. A conceivable threat to the availability of works resulting from expanded freedom of panorama could come from owners of works pulling them from public display in order to preserve their rights of commercial exploitation through reproduction. This would not be a concern if an expansion of freedom of panorama was limited to noncommercial use only; however, under freedom of panorama as it exists currently in the Copyright Act, commercial exploitation by the public is already allowed.33
Copyright has always been reactive to technological advancements, such as the printing press, the phonograph, the personal computer, the Betamax and VCR, MP3s, and other digital sound recording formats; these are all technological advances that with time have moved the law of copyright to adapt. Today, mobile devices and mobile broadband Internet access have drastically changed the way we live our everyday lives, but the law of copyright has yet to adapt to these changes. Online communication and sharing, brought about by technological advancements, have made new ways of communicating not only possible but also commonplace, but there remains a disconnect between today’s accepted “social norms” and infringing activities under the Copyright Act. This disconnect is most prevalent when sharing works of fine art, sculptures, and other works of visual art located in public spaces. Art moves the human spirit; art inspires and promotes communication and discourse; and in today’s digital world where a large majority of the U.S. population is connected to social media through their mobile devices, it indeed may be time for Congress to fashion new rules—that new technology made necessary—so that the Copyright Act reflects and embraces the new ways we share, learn, stay connected, and interact with each other. u
1. Bryce Clayton Newell, Freedom of Panorama: A Comparative Look at International Restrictions on Public Photography, 44 Creighton L. Rev. 405, 409 (2011).
3. Consider, for example, that Title II of the Digital Millennium Copyright Act, the Online Copyright Infringement Liability Limitation Act (OCILLA), 17 U.S.C. § 512, received only two technical corrections from 1998–2015—a technical correction in 1999 that deleted the heading “Injunctions” from § 512(e)(2) (Pub. L. No. 106-44, 113 Stat. 221, 222 (1999)), and a deletion made for brevity in 2010 which removed “in both electronic and hard copy formats” from § 512(c)(2) (Pub. L. No. 111-295, 124 Stat. 3180, 3180 (2010)).
4. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 430–31 (1984) (footnotes omitted).
5. Joshua Lobert et al., HEC-NYU Pub. Interest Clinic, Extending Freedom of Panorama in Europe § 3.8, at 9 (2015).
6. Newell, supra note 1, at 405–06.
7. Id. at 406.
8. Such a system has led to inconsistency and fragmentation among member states. “Allowing individual Member States to pick and choose which exceptions to incorporate, if they choose to incorporate at all, has created an immensely complex system that prevents consumers, as well as members of industries that act in digital space, from understanding how to respect copyright law in the EU.” Lobert et al., supra note 5, § 4.1, at 10.
9. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, art. 5(3)(h), 2001 O.J. (L 167) 10, 17.
10. Urheberrechtsgesetz [UrhG] [Copyright Act], Sept. 9, 1965, BGBl I at 1273, last amended by Gesetz [G], Dec. 20, 2016, BGBl I at 3037, art. 59 (Ger.), http://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html.
11. 1999. évi LXXVI. törvény a szerzői jogról (Act LXXVI of 1999 on Copyright), art. 68 (Hung.), http://www.wipo.int/wipolex/en/text.jsp?file_id=325838.
12. Autoriõiguse seadus (Copyright Act), Nov. 11, 1992, RT 1992, 49, 615, § 20 (Est.), http://www.wipo.int/wipolex/en/text.jsp?file_id=258141.
13. Nomos (1993:2121) Pnevmatikí Idioktisía, Sigyeniká Dikaiómata kai Politistiká Thémata [Copyright, Related Rights and Cultural Matters], Ephemeris tes Kyverneseos tes Hellenikes Demokratias [E.K.E.D.] 1993, A:25, art. 26 (Greece), http://www.wipo.int/wipolex/en/text.jsp?file_id=186801.
14. Id. at art. 28.
16. Plamena Popova, Report on the Freedom of Panorama in Europe 29 (2015), https://epthinktank.eu/2016/07/21/freedom-of-panorama/ (“France and Italy do not provide any exceptions regarding the use of works permanently located in publicly available places.”).
17. 17 U.S.C. § 120(a).
19. Newell, supra note 1, at 406.
20. Id. at 408. The author has personally witnessed the chilling effect the specter of defending against infringement claims has on content creators. As counsel for the owner of a work of fine art displayed in a public space, the author received an inquiry for a license from an independent filmmaker. The client’s art just happened to be in the frame of what was to be a fleeting scene, and the potential licensee, despite having defenses of de minimis and fair use available, instead sought to obtain a license as insurance against litigation. The potential licensee was relieved to hear that the client’s art was in the public domain.
21. The U.S. Copyright Office has taken strides to mitigate this chilling effect by launching its “Fair Use Index,” a free resource available to the public containing briefs of cases involving fair use. The public may search the Fair Use Index by a variety of fields to gain an overview of the holdings of various fair use cases in given courts based on certain fact patterns, and is available at https://www.copyright.gov/fair-use/fair-index.html.
22. Christopher F. Schuetze, European Universities Catch the Online Wave, N.Y. Times, Sept. 22, 2013, http://www.nytimes.com/2013/09/23/world/europe/european-universities-catch-the-online-wave.html.
24. 17 U.S.C. § 110(1).
25. Id. § 110(2).
26. The OCILLA provides “safe harbor” protection to online service providers against liability for infringing acts of their users under certain circumstances. See id. § 512.
27. Id. § 106A.
29. See Leicester v. Warner Bros., 232 F.3d 1212 (9th Cir. 2000) (ruling that a large art installation titled Zanja Madre, which appeared in the movie Batman Forever, was physically a part of the building’s features and conceptually inseparable from the building, and thus subject to the freedom of panorama provisions of 17 U.S.C. § 120(a)).
30. 134 F.3d 749 (6th Cir. 1998).
31. Id. at 754.
32. Tourists Warned They Are Breaking the Law Because Taking Photos of the Eiffel Tower at Night or Sharing Images on Facebook Is ILLEGAL, Daily Mail (Nov. 12, 2014), http://www.dailymail.co.uk/travel/travel_news/article-2831331/Tourists-warned-breaking-law-taking-photos-Eiffel-Tower-night-sharing-images-Facebook-ILLEGAL.html.
33. See Rock & Roll Hall of Fame, 134 F.3d 749.