On Sunday last (so August 2014) I went to the exhibition at the National Portrait Gallery titled “Virginia Woolf : Art, Life and Vision A few days earlier I had read the exciting post of Eleonora Rosati on IPKat [ Thursday, 21 August 2014 : Taking a selfie inside the National Gallery: a copyright infringement? ] which brought the news that “following similar moves by a number of other UK institutions .... the National Gallery in London has changed its strict no-photos-(please) policy”.
Was it the case (I asked myself) that the National Portrait Gallery was one of the “other UK institutions” ? Could I (for example) place myself in front of T.S. Eliot in this photograph and take a selfie of Virginia Woolf leaning towards me (replacing T.S. Eliot)? Alas, the website of the National Portrait Gallery is clear that
“Photography is not permitted in temporary exhibitions or displays with loans”
So no photograph. But two thoughts :
1) on period of copyright : the line (bottom of the photograph on the website) is (C) National Portrait Gallery London. Lady Ottoline Morrell took the photograph of Eliot and Woolf in 1924. She died in 1938. So copyright expired in 2008 ?
20 on Representation of certain artistic works on public display” : Section 62 Copyright,Designs and Patents Act 1988 ('CDPA') applies to “buildings” and provides that “The copyright in such .... is not infringed by ...... making a photograph ... of it”. The follow-on is that “ Nor is the copyright infringed by the issue to the public of copies, or the communication to the public, of anything whose making was, by virtue of this section, not an infringement of the copyright”. So presumably I can take a photograph of the building that is the National Portrait Gallery and include that photograph in a (greetings) card which I post (online) on social media and post (envelope-with-stamp) to family and friends and others WITHOUT risk of an allegation of copyright infringement ?
The detail that attracted attention was Lee’s reference to “the UKIPO practice on the registration of the names of famous buildings”. The relevant paragraph in the Manual – headed FAMOUS BUILDINGS (Pictorial representations (emphasis supplied) or names of well known buildings) - contains the text :
“traders in the area of a famous building, which is likely to be a tourist attraction, should be free to produce mementos and ornaments bearing the name or representation (emphasis supplied) of the building without infringing the rights of another."Also the text :
“if the building is a tourist attraction then the objection should be raised”.As to where it leads :
A) If I take a photograph of the building that is the National Portrait Gallery and thereafter distribute this photograph – the law of copyright sanctions this activity : section 62 CDPA 1988 (above)
B) If I take a photograph of the building that is the National Portrait Gallery and try to register this (representation) as a trade mark at the UK Trade Mark Registry, there is likely to be discussion with the Registry as to whether the mark applied for is a famous building / tourist attraction : see Manual / UKIPO practice (above)
C) The interests of the National Portrait Gallery lie in the UK Trade Mark Registry coming to the conclusion that the building that is the National Portrait Gallery is a famous building / tourist attraction so that my attempt to register is refused
D) But such a conclusion means (presumably) that an Application of the National Portrait Gallery to try to register a photograph of the building that is the National Portrait Gallery must also fail.
So (I ask myself) will the public-spirited owners of buildings which have a “Photographic Policy” be amending same with the note “This building is a famous building / tourist attraction” in the hope this deflects / reduces the possibility of a photograph (representation) of that building being registered by a third party as a trade mark ?