Photography of and in libraries

Jessamyn West started a fascinating exchange when she reported on her attempts to photograph the Des Moines, Iowa public library.  In addition to the extensive comments on her post, it also led to an interesting exchange on an list for architects.  Because I know that Carolyn Wright, the Photo Attorney, is interested in efforts to restrict photography in public places, I shared the exchange with her and she weighed in on the legal issues. 

Anyone interested in policies regarding photographs in library buildings should read all the exchanges, but here is what I have taken away: 

• Copyright law does not limit what can be done with photographs of copyrighted buildings taken from public places.  If you want to make commercial use of a photograph of the Des Moines Public Library, you can.
• Nevertheless, both the Library and the architect of the building wish to restrict commercial photography of the building in spite of what copyright law allows.
• As Carolyn Wright points out, in order to restrict legal uses, the library has to use some other law.  In this case, it is trespass.  The library is in effect saying “You can only enter the library if you agree not to make commercial use of photographs of the building.”

I can understand some of the restrictions on meeting room policy that the library has.  For example, the policy as given in Jessamyn’s blog entry states that  “photographing may not disrupt library customers’ use of the library.”  That seems eminently reasonable.  It adds “Library employees on duty may not be photographed for political campaigns.”  I can understand that the library would not want to appear to be endorsing a political candidate, but I still might like to think about that one. 

But I have to wonder about the wisdom of restricting commercial use of photographs.  We don’t say that users can only make non-commercial use of the books, magazines, and internet access that the library provides; I am not sure why one would want to make this distinction about photography of a public building.

Some of the commentators to Jessamyn’s post suggest that the restriction may have been required by the contract the library signed with architect.  I would encourage libraries that are signing contracts with architects to think about whether there are contract terms that are in conflict with traditional library principles of access and openness.

Lastly, while the discussion has been about photographs of buildings, we shouldn’t forget about the rights of people who might be in those buildings.  Bryan Carson has an excellent article called “Laws for Using Photos You Take at Your Library.”  He reminds us that while, in general, you don’t have to worry about non-commercial use of photographs of people taken in public spaces, there are states in which permission is required if you are using photographs for “advertising.”  Library marketing could fall into this category, and so it is best to get releases.  ALA’s “Use of Photographs in Publicity Materials” wiki page has some useful resources and links.

Comments

[Deborah Hirshberg, M.P.A./J.A.]

December 7, 2009 I utilize library Internet services at public libraries. While so doing, it has been identified and observed by many patrons that Word documents, email, and other communications and work prepared while at a library may undergo cyberwarfare, to wit, hacking. Intellectual property is stolen through the backdoor of email, text on Word documents is cut and or edited. I one instance in Miami,FL it was identified that the entire library network was hit with cyberwarfare and every Dell computer motherboard failed on the same day, printers failed, copiers failed, etc. Much of the above activity is explainable and tracked through trap and trace, IP traffic monitoring software, or other means.

My company, a sole proprietorship from Florida, Neural Circuitry, has been negatively impacted by these actions. A 500 plus page document wherein I document research for two books and a lawsuit, is constantly edited by third parties when I am at the library.

IT is alleged that my work is specifically targeted unlawfully by way of a USSID 18 biometrics tap, and unlawfully pursuant to 50 USC 402(notes) and 50 USC 403, originally with equitable estoppel and estoppel by silence.
If you or your firm are available to discuss the above for potential litigation, possibly class action, you may contact me at [email protected]. I look forward to hearing from you or your firm.

[Robin Messing]

I’m not a lawyer, so my legal observations are probably only worth the electrons they are written on. As Carolyn Wright pointed out, 17 USC 120 prevents an architect from using copyright law to prohibit others from taking pictures of his work if it is ordinarily visible from a public space. But let’s conduct a thought experiment just for the fun of it. Let’s pretend that there was no 17 USC 120 to give us the right to take pictures of architectural works. Can an architect unilaterally and unconditionally prevent photographers from taking pictures of his work for commercial purposes?

Not necessarily. I’m a bit surprised that I haven’t seen much discussion on Fair Use. In particular, I’m surprised that I have seen no mention of Campbell v. Acuff Rose. The Supreme Court clearly stated that a fair use analysis is faulty if it ONLY considers whether or not the allegedly infringing work is being used for commercial purposes. Whether or not the copying work is being used for commercial purposes is but one of AT LEAST four factors to be weighed in deciding whether it is infringing or falls within fair use. Another factor to be considered is whether or not the publication of the copying work hurts the market for the original. And in this case, publishing photographs of the architectural work soon after its construction may have harmed the architect’s right to exploit the derivative market for photographs of his architectural work. Score two for the architect.

But there are at least two other factors that must be considered. If the amount copied from the original was insubstantial then this would point toward fair use. And the purpose of the copying work could conceivably be the most important factor, tipping the balance towards fair use. Suppose I wanted to commercially publish a book entitled “The Top 10 Worst Architecturally Designed Libraries in the U.S.” Suppose my book used photographs as an integral part of a detailed analysis backing my contention that certain libraries were so poorly designed that they were a waste of taxpayer dollars. It is exactly this kind of use that the Fair Use exception was intended to protect. I shouldn’t HAVE to get the architect’s permission to use photographs of his architectural work for my critique. And if the law did require me to get the architect’s permission, then this critique would never be written. I’d have an easier time selling Red Sox paraphernalia in Yankee Stadium than getting an architect to grant me permission to photograph his building for my book.

It APPEARS to me that the architect MAY have tried to use a contract between the library and himself to do an end run around the fair use rights of third parties. (I’m not stating as a fact that this was the architect’s motives. I could be wrong. But it certainly LOOKS to me.)

Of course, a library COULD use trespass law to enforce a rule that would require visitors to get permission from its Communications Officer before taking pictures. But I am queasy about such a policy, especially if the library was built or is run with taxpayer dollars. Should those who run a library that is at least partially funded by taxpayer dollars be able to selectively decide who can take pictures of it and who cannot? Might not a library’s Communications Officer abuse her power by preventing someone from taking pictures of the library if she knew they would appear in a book of the “Worst Libraries in the World”? If a Library is truly worthy of the dubious honor of appearing in such a book then it seems likely that the Communications Officer would be doing everything in her power to make writing this book more difficult. Inhibiting this type of free flow of information is, of course, the antithesis of what library’s are all about. I also wonder if the library, using taxpayer’s dollars, could constitutionally enforce a policy requiring permission before allowing photos to be taken. Might this not run afoul of Near vs. Minnesota’s prohibition of prior restraints of speech? I honestly don’t know the answer to this question, and I’d be interested in feedback from someone who does.

Having said all that, a library could reasonably put time restraints on when photos are taken so that photographers do not disturb patrons during peak use. And it could adopt a policy that a photographer may not take pictures of patrons using the library without first getting written permission from their intended subjects. Of course even this policy should have an exception for those who are taking pictures for legitimate news-gathering purposes. If a photographer sees Osama Bin Laden checking out a book in the library, he should not be required to get Osama’s permission, even if he intends to use the picture for commercial purposes.

[Pamela Sandstrom]

We are interested in learning more about policies that other academic libraries and their parent institutions have regarding video filming or still photography within the library (and generally on campus), by students and unaffiliated visitors, including news organizations. The issue is coming up again and again for us, with increasing numbers of students using the library to stage their own visual content for class assignments. We are planning to get more involved in checking out video cameras and other digital devices that will further test the breadth of our current policies. Even though we have a comprehensive privacy policy regarding library patron records, and another that requires people to sign a media waiver giving their permission to be filmed, the broader issue is about library users' reasonable expectations of privacy and freedom from being disruption while concentrating or being exposed to unwarranted surveilance within the library. We are debating whether an academic library (in a state-supported public university) is indeed a public space, and whether the library should have special consideration when other campus grounds are regarded as public spaces.