RE: Re: copyright of reproductions

With very few exceptions, the point at which a photograph qualifies for copyright protection involves a myriad of interdependent factors, all of which must be considered in the light of the specific fact pattern involved in the creation of each work. This will surely frustrate any attempt to apply a generic bright line to all authors of photographs. I suggest that it would be more prudent to view copyright protection on a continuum, and to consider the *extent* to which copyright protects any one photograph, together with the *nature* of the protection afforded, rather than focusing on whether or not a particular type of photographic subject matter is "copyrightable." The extent to which a photographer exercises original authorship determines the extent to which that photographer enjoys copyright protection in the work.

When a photographer creates a photograph picturing another work, such as a painting or sculpture, the photographer earns copyright protection if a minimum level of authorship is exercised in the process of fixing the work. The photographer's selection of camera, lens focal length, camera position, light position, light quality, relative light intensity, light Kelvin temperature, exposure, film type, variations in film processing, polarization (the extent to which reflections are/are not allowed to appear) and background (if any), color balance adjustments, and composition (positioning of the artwork within the frame) and any subsequent digital manipulation arguably qualifies as authorship and provides the photographer with copyright ownership in the resulting photograph. However, the extent to which such photographs are protected by copyright is dependent on the extent to which *original* authorship was exercised by the photographer. Surely, copyright law provides the photographer with the right to control unauthorized reproduction, distribution or display of such photographs. However, where the extent of original authorship was minimal, as in a relatively straightforward photograph of another artwork, the photographer's copyright in the resulting photographs may not prevent other authors from creating and exploiting substantially similar works. This is known as "thin" copyright.

Example:

Photographer "A", an independent contractor, enters an agreement with Painter whereby Photographer "A" will create photographs of Painter's paintings. Photographer "A" owns copyright in the resulting authorized derivative photographs but does not own copyright in the pictured Artworks. Photographer "A" grants Painter a limited license to reproduce, display, and distribute Photographer "A's" photographs of Painter's paintings. If Painter's use of the photographs exceeds the scope of the license granted by Photographer "A", Painter has infringed upon Photographer "A's" copyright in the photographs, and Photographer "A" is entitled to remedies for copyright infringement -- either actual damages or up to $150k in statutory damages for willful infringement of timely registered work. Similarly, if Photographer "A" exploits the derivative photographs of Painter's work without license from Painter, Painter is entitled to remedies for copyright infringement. But importantly, if Painter later contracts with another Photographer, Photographer "B," who then creates new photographs of Painter's paintings that are identical or substantially similar to Photographer "A's" work, Photographer "A's" thin copyright in his photographs will very likely frustrate any attempt by Photographer "A" to pursue Photographer "B" for copyright infringement. Both Photographer "A" and "B" exercised sufficient authorship to earn copyright ownership, and both photographers are protected from unauthorized reproduction, display or distribution of their works. But neither photographer has earned the right to prevent others from creating and exploiting similar works.

One case on point is ETS-HOKIN v. SKYY SPIRITS INC., 323 F.3d 763 (9th Cir. 2003), in which the photographer's copyright in what appeared to be a relatively straightforward image of a client's vodka bottle was strong enough to provide the photographer with copyright protection against unauthorized reproduction/display/distribution of his work, but too "thin" to prohibit his client from hiring another photographer to create a similar photograph.

One further note -- I strongly disagree with the assertion that a photographer's use of a disposable camera (or any other type of camera) can decrease the level of copyright protection afforded the author. Some of the most creative and successful photographers use disposable or toy cameras in the creation of their works. Copyright protection is not earned by an author's tools. Rather, copyright protection is earned by the process of authorship, which involves the selection and use of those tools, as well as other factors.

_J_e_f_f__S_e_d_l_i_k_

PS: I am a photographer, not an attorney, but consult with photographers and attorneys on matters involving photography and copyright.

213 626 3323
212 447 1255 Received on Tue Jun 01 2004 - 18:41:18 GMT