[author: Bowen Yu]

Foreword

In legal sense, "architectural works" refer to works with aesthetic significance expressed in the form of buildings or structures, which are protected by Copyright Law. However, landmark buildings have public attributes in addition to the legal attributes of copyright. In practice, in order to highlight certain regional characteristics, many enterprises like to use photos containing local landmark buildings in posters and company brochures in their advertising, or the landmark building is used as an object in one’s drawing or painting. Recently, a client consulted the author that he drew a simple drawing with "CCTV Building" as the object. In order to publicize his business activities in Beijing, he intended to use the simple drawing of "CCTV Building", which can represent Beijing's characteristics, in the publicity event. In this case, what specific copyright legal issues are involved in the creation and use of the simple drawing of "CCTV Building"？

I. Types of copyright works that may be involved in landmark buildings

A landmark building is a symbolic building in a city or region. Its appearance often has the originality in the sense of copyright law and can be protected as an architectural work. This is also the most common type of works of landmark buildings. However, it should be noted that landmark buildings are not equivalent to architectural works; instead landmark buildings are only the carrier of architectural works in 3D form. Article 3 (4) of the Copyright Law protects architectural works rather than buildings. Even if it is like CCTV Building and Sydney Opera House, not every part is included in the scope of copyright protection, such as the internal structure of CCTV Building.

In addition to the typical "architectural works", the preliminary design scheme of landmark buildings and the "engineering design drawings drawn for construction and production" in the construction process may also constitute "graphic works" separately. In addition, there are also some derivative works based on landmark buildings, such as three-dimensional "model works" made in a certain proportion according to the shape and structure of the objects, for the purpose of display, experimentation or observation. Photos taken with landmark buildings as objects involve "photographic works", and "simple drawing", "renderings" and other paintings created based on landmark buildings may also constitute "works of art" if they are original.

II. Types of infringement of landmark buildings

The copyright itself involves far more types of rights than trademark rights, patent rights and other intellectual property rights. Moreover, due to the many types of works involved in landmark buildings, the judgment of infringement is more complex. The author lists the most common possible types of infringement as follows:

1. From plane to plane

For example, directly copy the design drawings of others’ graphic works, and copy others’ photographic works of architecture or simple drawing and other art works.

2. From plane to three-dimensional

Build the same or similar buildings according to the exterior shape of the building reflected in the plane design of others' architectural works, and build the same or similar buildings according to others' renderings or photos, aerial views, etc.

3. From three-dimensional to three-dimensional

Directly reproduce buildings that are identical or similar to others’ buildings based on the exterior shape of the building, etc., or make models based on the architectural works of others.

4. From three-dimensional to plane

Photographing or recording the exterior of a building, or painting and drawing based on the exterior of a building, etc. The above-mentioned acts based on the exterior shapes, etc. of the buildings may also constitute derivative works if they have a new creative element.

As mentioned in the foreword, the simple drawing of the "CCTV Building" itself is based on the unique architectural appearance of the "CCTV Building", which is a secondary creation of the architectural work of the CCTV Building, and if its secondary creation has originality in the sense of copyright law, the simple drawing itself constitutes a work of art and is protected by law.

However, the simple drawing is created based on the appearance of architectural works, the right holder of architectural works enjoys the right to adapt their works, and the author of secondary creation does not enjoy the copyright of architectural works of the original work, that is, "CCTV Building", and the creation and use of the simple drawing may be suspected of infringing the right to adapt architectural works without the authorization of the right holder of architectural works.

III. Fair use system for landmark buildings

The architectural works of landmark buildings are often located in public spaces such as outdoors and have public attributes. In its Civil Judgment (2013) Civil Retrial No. 15, the Supreme People's Court specifically discussed the fair use system of outdoor sculpture works: A work of art set in an outdoor public place may have formed part of the outdoor environment. If the public's relevant copying and other activities require the permission of the copyright owner, it is obviously too restrictive to the public's freedom and objectively cannot be realized, so it is the practice of various countries to restrict the copyright of such artistic works to a certain extent.

Therefore, in order to balance the individual rights and the public interest, the current legal framework provides for a "fair use" system. Article 24 (10) of the Copyright Law stipulates that copying, painting, photography or video recording of works of art set up or displayed in public places may be carried out without permission of the copyright owner and without payment, provided that the name of the author and the title of the work shall be indicated, and other rights enjoyed by the copyright owner in accordance with this Law shall not be infringed.

The legislative interpretation of the relevant provisions of the Copyright Law by the Legal Affairs Committee of the National People's Congress also states as follows: "The reason why the Copyright Law stipulates that the copying, painting, photography and video recording of works of art set up or displayed in outdoor public places may be carried out without permission of the copyright owner and without payment, is mainly because these works of art displayed or installed in outdoor public places are of long-term public and public welfare nature. Since they are displayed or set up in outdoor public places, it is inevitable that some people will copy, paint or take pictures or videotape with this as a background."

In other words, if the use of a landmark building belongs to any of "copying, painting, photography and video recording", the user may consider claiming fair use based on the provisions of Article 24 of the Copyright Law. Based on judicial practice and relevant cases, the author believes that the following elements should also be considered when determining whether "fair use" is constituted:

1. Whether the author's name and the title of the work are indicated when using;

2. Whether the purpose of use is justified;

3. Whether the way of use will affect the value or potential market of the work;

4. Whether the manner of use will affect the normal use of the work by the right holder (at present and in the future).

The simple drawing of the CCTV building mentioned in the foreword is a drawing of works of art that are set up or displayed in public places. Article 18 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Copyright Dispute Cases stipulates that artistic works in outdoor public places as provided for in Article 22 (10) of the Copyright Law refer to sculptures, paintings, calligraphy and other artistic works that are set up or displayed in outdoor public places. Those who copy, paint, photograph or videotape the works of art specified in the preceding paragraph may re-use their results in a reasonable manner and scope, which does not constitute infringement. According to the above-mentioned legal provisions, the creator can also reuse such results as the simple drawing of the CCTV building in a reasonable manner and scope.

As to whether the purpose of fair use is limited to non-commercial purposes, there is some controversy in practice because the copyright law does not clearly stipulate. The notice issued by the Supreme People's Court on Several Issues Concerning Giving Full Play to the Role of Intellectual Property Adjudication Functions to Promote the Great Development and Prosperity of Socialist Culture and Promote the Independent and Coordinated Development of the Economy clearly states: "Under special circumstances where it is truly necessary to promote technological innovation and commercial development, taking into account the nature and purpose of the use of the work, the nature of the work being used, the quantity and quality of the part being used, and the impact of the use on the potential market or value of the work, if the use does not conflict with the normal use of the work and does not unreasonably harm the legitimate interests of the author, it can be considered fair use. Copying, painting, photography or video recording of works of art set up or displayed in outdoor public places, and reusing the results in a reasonable manner and scope, regardless of whether the use has a commercial purpose or not, may be deemed to be fair use.

It can be seen that if the purpose of the use of the simple drawing of the CCTV building is mainly to illustrate the place where the commercial activity is held, and its use does not harm the normal use of the architectural work, nor does it infringe the legitimate interests of the right holder, it can be deemed to be fair use, and the application of fair use cannot be denied simply because it is commercial use.

In addition, in order to protect the authorship right of the right holder of a work, the fair use system also requires that the name of the author and the title of the work be indicated when using the work of others. Article 19 of the Implementing Regulations of the Copyright Law stipulates that "where another person's work is used, the name of the author and the title of the work shall be indicated, unless otherwise agreed by the parties or it cannot be specified due to the characteristics of the way in which the work is used.”

The existing law does not provide further and more details in the determination of "it cannot be specified due to the characteristics of the way in which the work is used". In practice, the situations that the name may not be indicated mainly include: 1. Industry customs. For example, in the case of Shen vs. Jincai Business Department [(2015) Cheng IP Civil First No. 355], the court held that the decorative spangle on the accused infringing product was used on wedding invitation and could not indicate the author's name. 2. Product characteristics. For example, in the case of Yang vs. a supermarket company in Wuhan [(2006) Wu IP First No. 120], the court held that "the sesame candy packaging is limited by the packaging design conditions and packaging content, and it is impossible to indicate the name of the author of the sculpture and the title of the work." 3. Objective situation. For example, in the case of Guo vs. Chayan Company [(2015) Zhe Hang IP Final No. 244], the court held that in the process of using the work in question, Chayan Company failed to indicate the name due to the characteristics of the customer service profile of Taobao stores, which did not constitute an infringement of the right of authorship.

Of course, the object of fair use discussed in this section is for architectural works, and the provisions of Article 24 (10) do not apply if the object of the accused act is other types of works involved in a building, such as graphic works and works of art. For example, the simple drawing of the CCTV building is a copy or plagiarism of another person’s simple drawing of the CCTV building.

IV. Summary

As a cultural business card of a region or city, landmark buildings not only have the original expression of architectural aesthetics and profound cultural connotations, but also contain a variety of copyright protected types of works. As to the issue of architectural works involved in landmark buildings, since not all buildings constitute architectural works, and not all parts of buildings are within the scope of protection of architectural works, in handling cases involving the use of architectural works, it is first necessary to determine whether the building on which the use is based constitutes an architectural work and its scope of protection. Second, it should be confirmed whether the building has passed the term of protection. Many landmark buildings have existed for a long time, and if the protection period has expired, the property rights in their copyrights will no longer be protected by law. Finally, if the use complies with the fair use system, it can be further determined whether fair use can be claimed.

The architectural works, graphic works, model works, and art works involved in the landmark buildings are different objects of protection in the Copyright Law. This article only focuses on some of the situations, and many complex scenarios still need to be analyzed on a case-by-case basis. In addition, the situation mentioned in the foreword actually involves not only copyright issues, but also questions which may be closely related to trademark rights, unfair competition, and even design patents in the Patent Law in practice. It is not discussed in this article due to the length of this article.

Bibliography:

Protection and Exploitation of Copyright in Public Art Works, by Yang Ning, Meng Fanjing

Re-discussion of the Copyright Protection of Architectural Works: Starting from the Fireworks Infringement Dispute Case of "Blooming the Bird's Nest", by Liu Ying

Does Placing a Photograph of the "Oriental Pearl Tower" in the Company's Brochure Constitute Infringement? by Huang Chaoyue

Rules for Determining Copyright Infringement of Architectural Works, by Yuan Bo

On the Copyright of Architectural Works, by Fang Jie, Cheng Zirou

Copyright Fair Use of Outdoor Buildings, by Sun Lei

On Copyright Issues of Ineligibility of Indicating Authorship, by Yuan Bo

Reference cases:

(2006) Wu IP Fist No.120

(2008) Yue High Court Civil Final No.166

(2009) First Intermediate Civil First No.4476

(2013) Civil Retrial No.15

(2015) Cheng IP Civil First No.355

(2015) Zhe Hang IP Final No.244

(2017) Jing 73 Civil Final No.1404

(2020) Hu 73 Civil Final No.177

(2018) Su 01 Civil Final 8388