As professional photographers and influencers flocked to the Vessel in Hudson yards this March, they realized something strange written on the Vessel’s website: the Vessel would own all their carefully planned-out Instagrams. The Vessel is New York’s latest soon-to-be-landmark, featuring 154 intricately interconnecting flights of stairs, comprised of almost 2,500 individual steps.
When the structure opened last month, the terms of service provided that the Vessel owned “the irrevocable, unrestricted, worldwide, perpetual, royalty-free, sublicensable, and transferable right and license to use, display, reproduce, perform, modify, transmit, publish and distribute such photographs, audio recordings or video footage for any purpose whatsoever in any and all media (in either case, now known or developed later).” While many public venues retain the right to repost or use photos taken at the venue, Hudson Yards’ boldly restrictive license essentially amounted to a claim ownership. Hudson Yards also claimed ability to use the name and likeness of people depicted at the venue.
After days of outcry, a representative told Gothamist, “”The intent of the policy is to allow Hudson Yards to amplify and re-share photos already shared on individual social channels through our website and social channels. This is a practice utilized at nearly all major attractions and we wanted to over communicate, be transparent and disclose to all users. We are refining the language to be more clear.”
No matter how the terms of service change, a question remains as to whether these terms are enforceable. Is the Vessel an architectural work or sculpture? If it is a sculpture displayed publicly, the public would need the permission of the artist to take derivative works like photographs.[i] If it is an architectural work, the public has a right to create derivative “pictorial representations” of the work if it is located in or ordinarily visible from a public place. Section 120 of the Copyright Act provides, “The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”
If the Vessel is a sculpture, Hudson Yards probably would have been within its rights in its initial policy, while it would not have been within its rights as an architectural work. Section 101 of the Copyright Act defines an “architectural work” is the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings,” and section 202.11(b) defines a “building” as “humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions.”
While the Vessel isn’t “habitable,” it probably is a “structure designed for human occupancy” with its many stairs for climbing. Even if the new photo policy tries to restrict use of the photos, Hudson Yards probably doesn’t have the right to. The outcry, though effective, came from a policy that probably wasn’t enforceable. Either way, influencers should feel more comfortable sharing their valuable selfies with the new photo policy.
[i] ARTICLE: Long-Term Preservation of Public Art: From Cultural Heritage to the Confederacy, 14 Nw. J. L. & Soc. Pol’y 37, 57