By Caitlin McBride
After returning from a nice trip to Paris, you start uploading your pictures to social media. One of your favorites is a gorgeous photo of the Eiffel Tower at night—the elegant steel beams lit up brilliantly in the darkness. You post the picture on Instagram, on Facebook, and even on Twitter. Little did you know that your postings are actually copyright infringement.
Copyright law gives the creator or owner of an artistic work a number of rights over the work that are protected for a certain duration. For example, under Articles 2-4 of the Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society, if an owner has a copyright to a work, that owner has the right to control, among other things, who may reproduce the work and in what form; how, when, and by what means the work may be broadcast to the public; and whether and how the work may be distributed for sale to the public.
Copyright covers not only traditional artistic works like drawings, films, and songs, but can also include the architectural design of buildings. Article 5, §3 of the Directive mentioned above provides that Member States may allow exceptions to copyright law for, among other things, “use of works, such as works of architecture or sculpture, made to be located permanently in public places.” This provision is often called the “right of panorama,” and allows individuals to freely photograph, record, and otherwise copy nearly everything that can be seen while out in a public place, including fountains, skylines, and the exterior of buildings, even copyrighted ones.
However, the operative language “may” in the statute creates “a loophole in the EU law [that] allows member countries to opt out of freedom of panorama.” France, among a few others, has opted out of this provision. Therefore, taking and reposting photos of any building in France that has an active copyright, even if it is just part of the skyline, is technically copyright infringement.
By now you might be wondering, how can the Eiffel Tower be copyrighted? It’s been there forever! How long does copyright even last?
In the European Union, copyright lasts for the life of the author plus seventy years. The Eiffel Tower was the brainchild of Emile Nouguier and Maurice Koechlin, two engineers. They commissioned architect Stephen Sauvestre to design and build the tower, which was created in 1889. Since Stephen Sauvestre died in 1919, the copyright to the Eiffel Tower has long since expired. Because of this, the Eiffel Tower is in the public domain. In other words, there is no copyright on the tower; anyone can take photos and distribute them and use the Eiffel Tower’s likeness for their own purposes, even for commercial use. So, the little Eiffel Tower statutes sold in gift shops in Paris and the mini Eiffel Tower on the Las Vegas strip are all completely legal.
Even though the Eiffel Tower itself is in the public domain, the nighttime lights were not installed until 1985. Since the lighting is considered a separate artistic creation, copyright will not expire until at least 2055, if not longer, depending on the life of the creator. That means that any photos taken of the Eiffel Tower at night are technically copyright infringement of the protected work.
That being said, the copyright on the Eiffel Tower at night has yet to be enforced by any court, and it is unlikely that the Société d’Exploitation de la Tour Eiffel (who owns the copyright) will come after a tourist for posting some photos online (especially considering that Google results for “Eiffel Tower at Night images” still garners about 26 million results, despite the copyright). Even so, it is never a bad idea to obtain permission from the copyright holder, Société d’Exploitation de la Tour Eiffel to avoid copyright infringement.
 See generally, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Art 1-5, located at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32001L0029.
 See id.
 See id., at Art 5, §3(h).
 See Steve Schlackman, Do Night Photos of the Eiffel Tower Violate Copyright?, Art L.J., (2014), https://alj.artrepreneur.com/night-photos-eiffel-tower-violate-copyright/.
 Jessica Stewart, Copyright law Makes Photographs of the Eiffel Tower at Night Illegal, My Modern Met, Oct. 16, 2017, https://mymodernmet.com/eiffel-tower-copyright-law/ (last visited Jan 11, 2019).
 See Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights, Art 1.
 Origins and Construction of Eiffel Tower, Toureiffel.paris, https://www.toureiffel.paris/en/the-monument/history (last visited Jan 11, 2019).
 See id.
 See Elaine Sciolino, Eiffel Tower Refitted with 20,000 New Points of Light, June 22, 2003, https://www.nytimes.com/2003/06/22/world/eiffel-tower-refitted-with-20000-new-points-of-light.html (last visited Jan 11, 2019).
 See Schlackman, supra note 5.
 Google Image Results for Eiffel Tower at Night, https://www.google.com/search?ei=kMo4XNiHLYyGsAWssoL4BQ&q=eiffel+tower+at+night+images&oq=eiffel+tower+at+night+images&gs_l=psy-ab.3..0j0i22i30l5.13599.14469..14606...0.0..1.278.850.5j1j1......0....1..gws-wiz.......0i71.94cbzdTQaVs (last visited Jan 11, 2019).