[Note: the links provided are to material contained in an attempt (dated Fri, 21 Jun 1996 12:13:28) a year later to provide answers to some of the questions in the original post.]

Date: Thu, 4 May 1995 20:31:02 -0400

From: David Dailey <David.P.Dailey@williams.edu>

To: Multiple recipients of list <cni-copyright@cni.org>

Subject: photographing the environment

Okay, I'm a photographer. I go out into the woods and I photograph -- no problems of IP since Mother Nature does not file infringement suits. But in my walk through the woods, I come upon a hamlet, filled with the material artifacts of modern civilization. Let us suppose, for sake of argument, that all the artifacts I see below were created in 1995 in the United States and that they are all visible from the main street of the hamlet along which I am walking.

Can I photograph (and then do what I want with the results -- including cropping, scanning, putting on a home page, selling, or donating to the public domain):

1. A building (or does the architect claim copyright for this expressive-and-not-purely-functional expression) [an answer]

2. A car (let's say that the design is patented, and the outward form and shape are protected by trademark)? [an answer]

3. A wheel barrow (close inspection shows no evidence of the identity of the manufacturer) which is clearly a wheel barrow but is graceful, wonderful, and magnificent to behold (but then again maybe it's just the lighting)?  [an answer]

4. The lettering on the window of a store front (it is quite pretty actually)? [an answer]

5. The book-jackets of several books visible through the window? [an answer]

6. An awning (printed with a delightful floral print) above the window? [an answer]

7. A billboard advertising a particular brand of cigarettes? [an answer]

8. Several whiskey bottles with labels quite visible. (The edge of the window sill and the lighting make it a particularly nice shot.)? [an answer]

9. A man wearing a t-shirt with a very interesting (and obviously copyrighted) geometric design on it? [an answer]

10. A large cardboard box that says "Feather Grease" on it and has a simple illustration of a winged oil can under the label? [an answer]

11. A state highway sign (this is a state that likes to own its work-for-hire)? [an answer]

12. An elegant tiling done on the wall of an interior and private courtyard leading off the main street and visible from the main street? [an answer]

13. A man making a facial expression quite unlike any I've ever seen before? [an answer]

14. A sand castle that a young child has made in a playground? [an answer]

15. A sculpture standing in a public square? [an answer]

16. A beer can so crumpled I cannot, with certainty, detect the manufacturer? [an answer]

17. A painting that a sidewalk artist has just finished? [an answer]

18. A doll depicting a well-known cartoon figure protected by trademark?
[an answer]

If I take a picture of a scene containing all of the above, must I clip/censor anything from it because of IP infringement of one sort or another?

If not, may I crop the picture to focus closely on any one of the particulars above? If so can I blow-up item 8 and print it onto a t-shirt? If so can I take a print of number 18 and cut it and fold it into a shape resembling that of the doll?

May the photographer claim original expression in the composition of all these items, but lose this when the photo is cropped?

Or must the photographer be expected to contact all potential rights holders of all the artifacts contained in the picture?

One fuzziness in my mind about all this is:

Can a piece of intellectual property be covered by trademark, patent and copyright simultaneously, or does opting for one form of protection prevent one from claiming the others?

Does my own degree of fame and the fame of the creator of these artifacts enter into the question of whether or not my behavior is legal?

Is there any simple and consistent way to answer these questions?

David Dailey


A collection of random postings to cni-copyright during the years 1994-. Humor and dread.