This is the Inaugural Season of the new Yankee Stadium, said to be one of the most expensive sports arenas, costing over $1 billion.

The Yankee organization, to enhance the investment, has copyrighted and trademarked all aspects of the stadium to the extent permitted.

Exclusive licenses have been issued to sell photographs and posters, baseball caps and clothing with the Yankee name, and other forms of Yankee merchandize. Does the organization have the right to control all reproductions of the new stadium?

The Copyright Act derives from Article I Section 8 of the U.S. Constitution empowering Congress to make laws to secure for authors for limited times the exclusive rights to their creations.

Copyright Act §102 places original works of authorship into eight categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

Prior to 1990, there was no copyright protection for buildings which were considered “useful articles.” Then the Architectural Works Copyright Protection Act (AWCPA) passed giving limited protection to “architectural works.”

A view of the stadium as shown in the photos taken from street level makes it obvious the stadium fits the definition of “architectural work.”

Section 101 of the Copyright Act, Title 17 U.S.C. defines “architectural work” thusly:

An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.

Architectural works became a separate category with limited copyright protection.

Section 120(a), Title 17 states:

Scope of exclusive rights in architectural works

(a) Pictorial representations permitted. 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.

Can such work be reproduced in motion pictures, magazines and elsewhere?

There cannot be debate that the stadium viewed from the outside is just another expensive building. It should be noted that New York City owns the stadium but via a series of deals, licenses and tax gifts gave exclusive rights to operate the building to the Yankee organization.

Can the city or the Yankees prevent anyone from reproducing copies of the stadium within the parameters of said §120(a) of the Copyright Act?

I say “No,” ownership of the building being irrelevant.

In Leicester v. Warner Brothers, 232 F.3d 1212 (9th Cir. 2000), appellant/artist was involved in the creation of a so-called 801 Tower in downtown Los Angeles and four towers that formed a street wall on the south side of the building which were reproduced in the film “Batman Forever” as the Second Bank of Gotham. Appellant claimed separate copyright protection in what he felt was separate artistic contribution to the real estate project, so the film and those involved violated his rights.

He lost. The Ninth Circuit in a 2-1 ruling with three opinions held that §120(a) of the Copyright Act allowed reproduction of the streetwall visible to the public to be used in the film.

In Landrau v. Solis-Betancourt, 554 F.Supp.2d 102 (D. Puerto Rico, 2007), the plaintiff architecture firm sued another architecture firm and magazine and its publishers and those associated with the publication for violation of rights under Architectural Works Copyright Protection Act (AWCPA) 17 U.S.C. §120 over building a house in Puerto Rico which was photographed and used in defendant’s magazine Architectural Digest. The court held that buildings are not subject to protection under the Copyright Act as distinguished from the plans or design allegedly copied. Further the court ruled the house was not a work of “visual art” protected under the Visual Artists Rights Act (VARA).

It is clear that a building visible to the public may be photographed and otherwise reproduced and used without limit; but what if the building has an alleged Trademark?

This was tried by the Rock and Roll Hall of Fame and Museum Inc. v. Gentile Productions, 134 F.3d 749 (6th Cir. 1998), where an injunction was denied against a publisher of a poster depicting the museum’s unique building design.

There is the well-established proposition that if an action is permitted under the Copyright Act, it cannot be prohibited by going through the “back-door” claiming Trademark Act protection.

Such was made clear in Maljac Productions Inc. v. Goodtimes Home Video Corp., 81 F.3d 881 (9th Cir. 1996), where the John Wayne film “McLintock!” fell into the public domain, meaning anyone could use (minus the music track which was still under copyright).

Maljack thought it could control videocassette distribution of the film (Goodtimes secured a proper music license) by trademarking the title “McLintock!” and claiming trademark infringement. Maljack lost, the court holding that if the Copyright Act allowed use of the public domain film, trademarking the title could not prevent it.

The concept of §120(a) of the Copyright Act has even extended to the right of the public to view and photograph The Titanic when located in a public place, e.g., international waters. R.M.S. Titanic Inc. v. Haver, 171 F.3d 943, fn.5 (4th Cir. 1999).

Thus it appears to be settled law that a building such as the new Yankee stadium may be sketched, posterized, postcarded, photographed and otherwise reproduced by anyone, and sold and resold.

This excludes the insides of the stadium which cannot be seen from a public site.

At the suggestion of the MTA New York City Transit (and a cheap way of looking) take the subway to the 161st Street, which is Yankee Stadium station, and walk to the rear to get “…a terrific view of the new stadium.” GOD Bless the MTA for such an idea!

Everyone has the First Amendment right to reproduce the Statue of Liberty. Similarly anyone having a public view of the stadium can reproduce a pictorial representation of it.

If I or anyone decide to sell the P word: posters, postcards, playthings, puzzles, pop-ups, pictures, pies, even pizza (with or without pepperoni or parmesan) reproducing the stadium in two or three dimensions based on street level photos, I dare anyone to stop me and them.

Howard Gotbetter is based in New York City and has specialized in intellectual property rights and litigation for over 50 years.