Nighttime photos of the Eiffel Tower: is the lighting protected by copyright?

MesurerThe Eiffel Tower is the most visited (paying) monument in the world and attracts many tourists every year. In the digital era, it is becoming easier for every tourist to immortalize the Eiffel Tower and publish photos on their Facebook or Instagram account. The question which springs to mind and which has been amidst much polemic is whether photos of the Eiffel Tower can be freely published or whether there is copyright infringement.

The Tower, as a work of architecture, has been in the public domain since 1990. Thus, in theory, anyone is free to use a picture of the Eiffel Tower for personal or commercial purposes. The issue became more complicated when the tower was illuminated at night.

The Société d’Exploitation de la Tour Eiffel (SETE) announces, on its website, that the various illuminations are subject to copyright. Thus, [usage of] any nighttime image of the Eiffel Tower is subject to a prior request from the SETE.

The originality of the illuminations is no longer challenged for a long time. This was confirmed by the Cour d’Appel of Paris in a judgment dated June 11, 1990. The Court held that the composition of the lighting effects intending to reveal and highlight the lines and shapes of the monument was an original “visual creation”.

Yet, during the transposition of the Directive of the European Parliament and of the Council, known as Infosoc, France has had the opportunity to craft an exception to copyright in architectural works located in public places. The Directive provides for this exception, but it is optional, which allows Member States of the European Union to elect whether or not to transpose the clause in their domestic law.  Alongside with Belgium and Italy, France has chosen not to allow the use of images of architectural works for private purposes.

Thus, the photographs of the Eiffel Tower taken during daytime are free of any prior intellectual property rights, while those taken at night require the authorization of the SETE.