Is the London Eye fair game to use in marketing material? We look at the legal issues to consider when showing this and other structures in ads.
Thanks largely to the National Lottery, the the National Lottery, the last year has seen an extraordinary architectural and engineering renaissance in the UK’s capital. An unprecedented array of new monuments such as the Dome, London Eye, Tate Modern and the Millennium Bridge have become icons of the new century and, for positive or negative reasons, have built a resonance with the public in a way that makes them very tempting for use in advertising.
But is the use in advertising of photographs or other representations of these structures without risk in the UK?
First of all there is copyright. Provided all have the necessary "originality" (which our millennium icons should ) there is copyright in buildings (including fixed structures like the London Eye) and even models of buildings as works of architecture. There is also copyright in architects' plans as "graphic works".
It goes without saying of course that all the buildings mentioned above will still be in copyright and that to make 3Dmodels of any of them will infringe copyright and should not be done without permission in writing
What about photographs or other representations of them?
The Copyright, Designs and Patents Act 1988 states that the copyright in a building will not be infringed by photographing it or publishing those photographs if the building work is on permanent public display. So far so good, but we have already noted that there is a separate copyright in the underlying architect's plan. Because photographing a building on permanent public display is only stated by the 1988 Act to not be an infringement of the copyright in the building, this leaves open the question of whether the picture could infringe the separate copyright in the plans. However, as there is no case law on the point, advertisers may, on advice, be prepared to take a risk in particular cases.
Monolithic moral rights
What about moral rights? Architects have moral rights in their drawings unless the first owner of the copyright in those drawings was their employer. The chances are that the drawings of Richard Rogers or Norman Foster will not have originated in those circumstances, so what do moral rights entail? There is the "credit" or "paternity" right to claim a credit whenever one’s work is reproduced. This can be exercised if the right has been "asserted" beforehand by the copyright owner. The Act specifically states that one acceptable way of "asserting" the paternity right in respect of buildings is to display a plaque on the building naming the architect. It is probably safe to assume this is the case with all of our London millennium monuments.
Assuming this is the case, issuing photographs or any other recognisable representations of all or a substantial part of any of these works is likely to infringe the paternity right unless the representation bears the architect’s name, for example in a caption under the picture.
Another moral right is the "integrity" right to relief in respect of any derogatory treatment of the work. This should not come into play by eg juxtaposing the famous building with a nude model. It will be a factor, however, if the shape or design of the structure itself has been distorted. In such a case, however, it should be acceptable to state under the image that the treatment of it does not have the knowledge or approval of the architect, but here and in all these cases, advice should be taken in each instance.
Passing off and other misdemeanours
Another possible source of difficulty may be the law of passing off. This may be relevant where the structure is being operated for a commercial purpose, has already built up business "goodwill" (described by the courts as "the attractive force that brings in custom") and already has substantial sponsors who have paid for exclusive rights to be associated with the structure.
This might apply, therefore, to the London Eye and (despite the negative press comment) the Dome, where advertising material includes a pictorial or even simply verbal reference to either in such a way as to give a "misrepresentation" (for instance as to a commercial relationship between the owners of the e.g. London Eye and the advertiser) likely to cause the Eye's owners financial damage.
Codes may also come into play. The British Code of Advertising for example, requires advertisers not to make use of the goodwill attached to the trade mark, name or the advertising campaign of any other organisation.
All in all, therefore, hardly a state of "public domain" and advertisers should take advice whenever they are contemplating using representations of these distinctive modern monuments.