Can you use a photo of a building in advertising without the owner’s permission?

Usually yes, but the owner’s consent is not the main question. Copyright in a building usually belongs not to its owner but to the architect or another copyright holder, unless the owner has acquired the economic rights by contract. A building created to stand permanently in a public place may be photographed and filmed, and those images may be made public, without the architect’s permission, naming the author where possible. This exception does not apply where the building is the main subject of the image and this is done for commercial benefit. Then you need the permission of the author or another rights holder. The owner decides something else: who enters the building and its grounds, and on what conditions.

People who appear in the frame are a separate topic. This article does not cover it.

Who holds the rights in the image of a building

A building can be a work protected by copyright. Article 4(2)(9) of the Law on Copyright and Related Rights of the Republic of Lithuania (AT) lists architectural works, including buildings and other structures, among the objects of copyright. Only original works that are the result of creative activity are protected (AT Article 4(1)). So not every structure is a work, but for most distinctive buildings it is sensible to assume that it is protected.

Copyright arises when the work is created (AT Article 13). No registration is needed. The Law also applies to the authors of architectural works built in Lithuania (AT Article 3(1)(4)).

The key rule for owners: copyright in a work is not linked to the right of ownership of the physical object in which the work is expressed (AT Article 50(1)). Unless a contract provides otherwise, the owner of a building does not hold the copyright. So an owner or building manager cannot grant copyright permission on the strength of ownership alone. In our assessment, nor can they forbid photographing the outside of the building from a public place, unless other legislation restricts it.

The position is different where the owner (for example a developer) acquired the economic rights under a commissioning contract with the architect (AT Article 41(1)). Then it is the owner who gives permission in the cases covered by AT Article 28(2), provided the contract transferred to it the rights of reproduction and communication to the public and, for printed materials, the right of distribution.

The author has the exclusive right to authorise or prohibit reproducing the work in any form or by any means, and making it public, including on the internet (AT Article 15(1)(1) and (8)). Any use without permission is unlawful, except in the cases provided for in the Law (AT Article 15(2)). A photograph, a video or a printed calendar is a reproduction of the work (AT Article 2(1)). Handing out the calendar’s print run is distribution (AT Article 15(1)(5)). A TV advert or a post online is communication to the public (AT Article 2(55)).

The economic rights last for the author’s whole life and 70 years after the author’s death (AT Article 34(1)). The term runs from 1 January of the year following the author’s death (AT Article 37(1)). Where several authors created the building, the term runs from the death of the last co-author (AT Article 35(1)). Once the economic rights expire no permission is needed, but the author’s moral rights are protected without time limit (AT Article 34(2)).

Buildings in public places: when no permission is needed

Without the permission of the author or another copyright holder, and without paying the author remuneration, it is permitted to reproduce and make public architectural works and sculptures created to stand permanently in public places. The exception: where they are displayed in exhibitions and museums. The condition: where possible, the source used and the author’s name must be indicated (AT Article 28(1)(1)).

AT Article 28(1)(1) names reproduction and communication to the public. It does not separately mention distributing printed copies, so for printed materials in which a building is prominent we recommend a more cautious assessment.

In our assessment, buildings, monuments and sculptures standing permanently in streets, squares and embankments are exactly such cases. When filming city views that show many buildings, none of which is the point of the shot, you do not need the architects’ permission.

The exception only allows depicting. It does not give a right to reproduce architectural works in the form of buildings or other structures, or to make copies of sculptures (AT Article 28(3)).

When permission is needed after all

This is the main boundary. AT Article 28(1)(1) does not apply where the architectural work or sculpture is the main subject depicted in the reproduction and where this is done to obtain direct or indirect commercial benefit (AT Article 28(2)). Both conditions must be met together.

A company calendar, an advert, a catalogue or a website is usually meant to promote the company or its products. In our assessment, that is at least an indirect commercial benefit. So the deciding question is whether the building is the main subject. A calendar page filled entirely by one well-known building, or an advert in which the camera dwells on one building or sculpture, carries a risk. A building as the backdrop against which your product or your service is shown usually does not.

If permission is needed, it is given by the author or their successor in title. Economic rights are transferred by contract (AT Article 38(1)), and a copyright licence agreement is concluded in writing (AT Article 42(1)). Moral rights, including the right to have the author named, cannot be transferred to others (AT Article 38(4); AT Article 14(1)(1) and (2)). So even with a licence, it is good practice to name the architect.

Your product on someone else’s building

For example, a company has installed its products, say windows, façade elements or building services, on someone else’s building. It wants to show that project in its own advertising. The main contractor or the building’s management says their permission is needed.

It helps to split that demand into three questions.

First, copyright in the building. If the main subject depicted is your product and the building is visible as its setting, in our assessment the exception in AT Article 28(1)(1) applies. Where possible, name the author of the building. If the photo essentially shows the whole façade of the building and your product is only a detail, in our assessment the building becomes the main subject depicted, so in an advert AT Article 28(2) applies and you need the architect’s permission.

Second, your contract with the contractor. The contractor’s demand that you obtain its permission binds you if it follows from your contract: from its terms, and also from what the nature of the contract or the law requires. A lawfully concluded and valid contract has the force of law for its parties (Article 6.189(1) of the Civil Code of the Republic of Lithuania, CK). Read your subcontract: it may contain a confidentiality clause, a ban on publishing photos of the project, or a duty to agree references to the project. If there is no such clause and the contractor does not itself hold economic rights in the building’s design (possible, for example, where it both designed and built it), in our assessment it has no independent ground to forbid using photos taken from a public place, unless other legislation restricts it.

Third, the photos themselves. They are also works. If your employee took the photos while performing their work functions, the economic rights in them pass to the employer for 5 years, unless the contract provides otherwise (AT Article 9(2)). Because the rights pass for 5 years only, agree longer use expressly. If an outside photographer took them, agree the rights in the photos in writing (AT Article 42(1)).

Interiors and private property

The owner of a building has the right, at their own discretion and without breaching the law or the rights and interests of others, to possess, use and dispose of their property (CK Article 4.37(1)). The right of ownership may be restricted by the owner’s own will, by law or by a court decision (CK Article 4.39(1)). In our assessment, the copyright exception for public places does not restrict the owner’s right to decide who enters their premises. The owner may demand the removal of any infringement of their right, even one not involving loss of possession (CK Article 4.98).

In our assessment, a practical rule follows from this. You enter the inside of a building, its roof or fenced grounds with the permission of the owner or operator, and on their conditions. If those conditions forbid photographing or filming, you must respect them. So to film in an office building’s lobby, inside a shopping centre or in a factory, you need the consent of the owner or operator. We recommend having it in writing, stating where the images will be used.

Inside a building there is also another copyright question. AT Article 28(1)(1) speaks of architectural works and sculptures created to stand permanently in public places. Paintings, frescoes, stained glass and other works of art (AT Article 4(2)(7)) are not listed in this exception. The exception does not apply to works displayed in exhibitions and museums. So for an interior shot in which such works are clearly visible, you need to assess separately whether their authors’ permission is needed.

A short checklist

• Was the image taken from a public place, or from inside or from private grounds? If from inside, follow the owner’s or operator’s conditions; for commercial filming, get their consent.
• Is a building or sculpture the main subject depicted? If yes and the use is commercial, you need the author’s permission.
• Are the architect’s economic rights still in force?
• Does your contract with the contractor or client contain terms on photos of the project?
• Do you hold the rights in the photos or video footage themselves?
• Have you named the author where possible?

How to start

Send us the photos or the advert’s script, tell us where they will be used, and attach your contract with the contractor or client if there is one. We will assess which shots need permission and prepare a licence agreement or a consent text.

Phone +370 5 212 1506, email info@linden.lt

More about this service: company law services.