An old photo of the Atomium with a cauliflower photoshopped over it

The Atomium and Freedom of Panorama

The Atomium is Belgium’s most famous set of balls. Built for the 1958 Brussels World’s Fair, this odd structure was never intended to be permanent but it has since joined the Wiener Riesenrad and the Eiffel Tower in an exclusive group of European landmarks leftover from temporary exhibitions. The building’s creator, André Waterkeyn, designed the building to represent a unit cell of an iron crystal magnified 165 billion times.

Iron Unit Cell

I visited the Atomium with my family in the 1970’s. My overwhelming memory is of a lot of orange plastic, tacky carpet and long, steep, enclosed escalators—so really, a lot like the 70’s generally. It was rather shabby looking from the outside, too; by then its aluminum exterior had weathered nearly 20 years of Belgium’s wet, foggy climate, which would do anyone in, really. Since then it’s been the recipient of a comprehensive remodel, and its stainless steel exterior and newly-designed interiors do much better justice to its forward-looking design and to the place it has in the modern history of Belgium. You should see the photos! It looks terrific, both outside and in.

Copyright and Public Buildings

If only it were that easy. As I looked into the recent history of the Atomium, I learned that posting photos of this building without permission is verboten: images of it are aggressively protected by SABAM, the Belgian Society of Authors, Composers and Publishers, and cannot be displayed for any reason on a website available to the public. They’ve loosened their grip on vacation photos recently, but outside of snapshots on Flickr and the like, even websites for educational purposes have to pay Mr. Waterkeyn’s heirs, and SABAM, a minimum of 90€ a month to display any image of this building.

The notion that one can “own” the rights to the exterior of a building that’s visible to the public, from public roads and public airspace, intrigues me far more than the eccentric structure itself does. And they aren’t kidding around—they apparently contact website owners regularly and threaten legal action if permission to use the image hasn’t been sought and granted, and the appropriate fee paid.

So this planned post about the design and history of the Atomium became a “how to post about a visually appealing and completely unique building without being able to show a photograph of the structure” exercise, and that’s hard.

As I delved in further, I learned that the Atomium’s copyright situation isn’t particularly unique. Though SABAM is known to be particularly litigious, you’ll find restrictions like these in many European countries: France, Italy, Russia and Belgium among them. Though these public buildings and artworks eventually pass into the public domain—typically 70 years after the creator’s death—they’re under copyright until that point, despite their visibility in public spaces.

If you’re especially clever, however, you can re-up this protection after it has expired. La Société nouvelle d’exploitation de la tour Eiffel (SETE) discovered a nouvelle technique for re-claiming a structure that had long been in the public domain: hang some new lights on it. France’s Cour de Cassation upheld this grabby stunt, and now all nighttime images of the world’s most famous tower are subject to SETE’s new copyright. So on the one hand, it’s an underhanded attempt to drag a money-making juggernaut back into protected status. On the other hand, someone created this light display, so can’t they seek copyright protection, as this is a “new work”?

Panoramafreiheit: You don’t always have it

In the US, and in many other countries, protected works of art also require permission of the creator for their use as a derivative work. However, we enjoy an exception to this rule called “Freedom of Panorama”, a term borrowed from a German law of the same flavor, Panoramafreiheit. Though the exceptions vary from country to country, in essence this means that the exteriors and public interiors (lobbies, etc.) of buildings, and objects permanently in public space are exempt from copyright demands. This seems sensible to me; if I can see it, and it’s in public, how can photographing it and displaying it for other people, who theoretically could walk by it and see it themselves if they saw fit, be a problem? In other words, how can you protect, and charge money for the use of, an image that’s visible to everyone for free? On a practical level, if you’re taking a photo of a public square in Paris or Brussels, how can you possibly know if you’re in compliance with applicable copyright laws for every building or statue in the photo?

But on the other hand, I think we’d all agree that  there’s a difference between a tourist taking a snapshot and a professional photographer creating high-quality images that are then sold for a profit. Should the law reflect this difference? And what constitutes “profit”? If a business owner has a blog on their business web page, and they post holiday snaps there, is this using them to make a profit? While I can somewhat understand a creator’s discomfort with an image of their creation being used to peddle soap flakes or provide an incidental backdrop to a political candidate with whom they disagree, these items are routinely viewable by the public, and if they’re part of the background of a public space, incidental to the image as a whole, does this constitute fair use? Though incidental use is generally allowed in France, other legal systems, including Belgium’s, are less flexible. And which country’s laws apply? And does any of this make any sense?

That said, this is a murky legal question, and one that puts artists’ interest in the same basket as those of licensing corporations, a recipe for bad legal decision-making since forever. (I’d provide you with a link here, but really, do you need one?) Instead, here’s an example: GEMA, Germany’s primary licensing company, has been butting heads with YouTube for years, a dispute that has effectively shut down YouTube in Germany, frustrating users while at the same time filling the coffers of proxy service providers. Counterproductive? Yes. Beneficial to artists who would like to make a buck for their work? Not likely, given the easy availability of proxy services. And ironically, this is the music licensing situation in the same country that gave us Panoramafreiheit.

I’ll assume a majority of people would like artists to be paid for their work when it’s possible. (I’m less concerned with architects, frankly, who design buildings to be placed, and permanently kept, unavoidably, in public.) But I’d be a lot more comfortable with copyright laws that restrict my use of others’ intellectual property if I thought the cash generated was going to benefit artists directly, rather than to fund disputes between licensing corporations and users, or licensing corporations and content distributors, benefiting no one but attorneys and licensing agencies. It’s all so depressingly familiar, and we know it doesn’t end well for anyone.

50th Anniversary of World Expo ’58

Back to the Atomium. When the Belgian town of Mechlen decided to organize a celebration of the 50th anniversary of the World Expo, they quickly discovered that their plan to include tourist photos from around the world would bump up against SABAM’s licensing requirements, since they, as the exhibitors, and potentially the photographers as well, would have to pay for the use of any photos that feature the Atomium, a centerpiece of the Expo. Eventually a temporary exemption was granted, and displaying the photos during the anniversary year was allowed by the Atomium and SABAM, but not before an appeal for 100 Photoshoppers to cut the Atomium out of all the images in the exhibit. I rather wish they’d had to go through with it—it’s a perfect illustration of the absurdity of SABAM’s application of the law.

Fin

I was able to find some terrific images from the 1958 expo here, on what I’m guessing is a website that’s using the images legally. And for your amusement, here’s an already paid for image courtesy of Le Slip Français, via the Atomium’s Facebook page. It was posted with the comment, “French dare to play with our Belgian balls to promote underwear!” Dignified, no?

French dare to play with our #‎belgian #‎balls to promote #‎underwear !

Featured image credit: from Stad Mechelen start guerilla tegen copyright op Atomium (google translated).

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