Are all the tourists taking photos of the Eiffel Tower at night committing copyright infringement?
So, before you take that next iconic night photo of the Eiffel Tower or any other monument with light shows or other potential copyright-protected aspects, let’s look at copyright law and its effect on the 125-year-old French landmark.
The Eiffel Tower Copyright
Under copyright law, a copyright holder of a creative work has the exclusive right to copy, distribute, publicly display, or create derivative works based on copyrighted material. These rights are given to various types of works of visual art, such as paintings and photos, as well as architectural structures and lighting designs. If these types of works are being used without permission, they may be considered copyright infringements, subject to various monetary and other penalties.
Most countries, including the United States and the European Union, have the same minimum copyright protections as they are all signatories of the Berne Convention (the international copyright treaty.) As part of the Berne Convention, each country agrees to provide these rights and mechanisms for enforcement to the copyright holder for a limited time. Once the copyright duration has ended, the works enter the public domain, where they can be used freely without permission from the copyright holder. How long copyright protection lasts depends on various factors. (See, Is Copyright Duration Too Long? For more information.) However, one rule of thumb for Berne Convention signatory countries is anything created before 1924 is likely in the public domain.
The Eiffel Tower was completed in 1887, so it no longer has copyright protection, and therefore, anyone is free to take photos or create an image of the iconic structure. However, the lighting design is a recent addition, only installed in 1985, so the lighting scheme is still protected by copyright.
So, if the lighting design is protected, why do we see so many images of the Eiffel Tower at night across the internet?
Stopping taking photos of the Eiffel Tower at night just isn’t practical.
Technically, the copyright holder of the Eiffel Tower’s lighting can prohibit photographing the Eiffel Tower at night, as well as posting them on social media or personal websites, selling them to publishers, or making prints available for sale.
Eiffel Tower in 1914
However, a copyright holder is not required to enforce the right granted by copyright. If the work is used without permission, it is up to them to remove the infringing image or hold the infringer accountable for the illegal act. So how can someone photographing the Eiffel Tower at night determine what uses of that photo will be acceptable to the copyright holder?
First, consider the public relations aspects of prohibiting individuals from taking night photos of the Eiffel Tower. An artist who creates such a prominent, publicly displayed work attached to a famous monument must expect people will take pictures of it and distribute them on the web or social media. Millions of people do. A search for “Eiffel Tower at Night” on Google will show over 24 million search results.
Any attempt to keep millions of people from taking photos of the Eiffel Tower would be a logistical require security to enforce the ban, which would be costly and impractical, if not impossible. After all, only a tiny percentage of people would know that the lighting is copyright protected. It would be doubtful that the Société d’Exploitation de la Tour Eiffel would agree to any lighting design that necessitated that level of security.
If stopping the photos is too difficult, what about removing them once posted? Removing the images would ultimately create a Public Relations nightmare for French tourism. Imagine visiting Paris, where you posted several photos of the Eiffel Tower to Instagram, only to find a copyright infringement letter waiting for you at home upon your return!
Even more problematic are the logistical challenges of removing the photos. Removal would be time-consuming and costly. While large image-oriented websites, such as Artrepreneur, provide a mechanism for easy takedown requests per the rules of the Digital Millennium Copyright Act (also known as a DMCA takedown request), this mechanism only applies to US based-sites that register as an Agent with the Copyright Office All other websites worldwide would require a written takedown request or cease-and-desist letter to each violator, an expensive and practically impossible implementation.
For sites that do not remove the infringing photos, the copyright holder must initiate legal action to facilitate their removal. Unfortunately, in most cases, the legal costs would be more than the potential monetary awards from the lawsuits (For a deeper understanding of monetary awards, see How Much Can I Get From a Copyright Infringement.) Therefore, it would be doubtful that anyone would be stopped from taking photos of the Eiffel Tower at night or receive a takedown request for a photo’s removal.
Given the challenges in enforcing the copyright on the Eiffel Tower’s lighting design, the Societé has explicitly provided the acceptable boundaries for photographing the Eiffel Tower at night on their website, stating that photos of the Eiffel Tower are not prohibited, with one caveat; night photos of the Eiffel Tower used for commercial purposes require permission.
“The Eiffel Tower’s lighting and sparkling lights are protected by copyright, so professional use of images of the Eiffel Tower at night require prior authorization and may be subject to a fee. Professionals should therefore contact the Eiffel Tower’s management company to learn about conditions for using the images depending on the case.”
Enforcing copyrights against professional photographers is certainly more manageable than for non-professionals. First, the photographer or organization using the photos would likely know that a license may be required. Permission for location shoots is a common practice, so potential infringements from this group should be minimal. If an infringement is discovered, the commercial use is more likely to have a mechanism for a takedown request. Plus, a commercial organization will be more inclined to correct the oversight by paying a licensing fee and penalties rather than removing the infringing work.
Further, if legal action is required, there is also a greater chance that the monetary awards will outweigh the costs of the lawsuit. If not, the copyright holder does not have to enforce its rights. They can selectively choose which infringements to target for legal action based on the potential monetary damages available, handling other infringements with takedown requests or cease-and-desist letters.
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So, suppose you will photograph the Eiffel Tower at night (or create artwork for any other national monument or public structure) for personal use on social media or other art sites. In that case, you aren’t likely to get into trouble. However, you should be cautious if the work is being used for a commercial purpose, especially one that may generate revenue. In either case, reviewing the terms of service for the location never hurts. Whether it is the Eiffel Tower, the Empire State Building, the Louvre, or the Museum of Modern Art (MoMA), their websites should provide all the information regarding images from their locations.
Have you had any issues with taking photos of national monuments or other publicly owned spaces? Let us know in the comments.
