Do Interior Architectural Photos Infringe?

Dear Rich: I am an architect and interior designer who designed a very nice custom house for some great clients. The house was recently put on the market and the real estate agent paid a photographer and a separate videographer to come in and shoot the interior and exterior. (BTW, the house sold in less than 24 hours as a result of the web marketing, for $100K over the asking price.) When the photographer offered to license me his photos of the house for my own use, I countered that maybe we should just consider trading licenses, since he had already violated my own copyright for the interior shots. (The exterior of the house is visible from the street.) The photographer huffily responded that he didn't need my permission; the owners had given him full permission, and that since the building was publicly visible, he had not violated any copyright. (Which I agreed was true for the exterior shots.) He also later stated that he had reviewed the situation with a photographic industry attorney, who agreed with him. But I'm pretty clear that I have a design copyright under the AWCPA, and believe that the interior photography done for commercial purposes without my permission infringed on this copyright. Care to opine on the situation? We can't say whether you would succeed in a court battle (more on that below), but it looks like you have a reasonable claim which should not be brushed off. That's assuming you can demonstrate your ownership of copyright (you're the "author" of the house) and that you did not sign any paperwork transferring your rights.
What's at issue? You're correct about the right to shoot exterior views. We don't believe interiors, even if publicly viewable, would be covered by that exception. Unfortunately, we haven't located a case that distinguishes photos of the interior of a publicly viewable home from the exterior and that's what makes us unable to reach a more definitive conclusion. It's possible that the photographic uses of the interiors -- the real estate agent's promotion of the house sale -- would be considered permissible either under an implied license (they're essential for selling the house which we assume was everyone's goal), or possibly for purposes of fair use (the objective was to sell the house, not the images). As for further use of the photographs beyond the sale, ultimately it's going to come down to (1) whether your interiors are sufficiently original to merit copyright protection -- that is, whether the layout of the rooms goes beyond "standard configurations," (2) what elements (unprotected) are "functional elements whose design or placement is dictated by utilitarian concerns," and (3) whether the photographs of the interior reveal enough information to infringe the architectural plans or designs. Simply showing the kitchen, or bedroom, for example is unlikely by itself to constitute an infringement; you'll need to show that the combined effect of the photos is an infringement of several elements of the design. This legal article may help explain in more detail.
BTW Dept. If you're looking for more information on the law and photography we like Carolyn Wright's blog.