On Fri, 11 Apr 1997, Gerald Barnett <barnett[_at_]u.washington.edu> wrote:
>
> The arguments supporting a finding of authorship in stock
> photography such as school pictures, and which operate by relying
> on a claim of low threshold of originality to establish copyright
> also provide opportunity for a student to argue that he or she has
> also exceeded that threshold and has contributed authorship (for
> instance, the student poses herself, evokes the desired expression,
> asks that the lighting be changed--if the photographer can claim
> this is authorship, certainly so can she) with the intent to merge
> this contribution with that of the photographer as "inseparable or
> interdependent parts of a unitary whole."
I disagree. Let's assume the following. There is only a student and a photographer, and the student pays the photographer a fee to take her senior picture. (The school is out of this picture, so to speak.) There is no written agreement, at least not with respect to copyright, between the two. There are then three possibilities of ownership:
Now, let's make some more assumptions. The photographer thinks the copyright belongs to him, and the student thinks the copyright belongs only to her or, failing that, to both of them.
It seems then that we can rule out #3 based on all these assumptions because one of the requirements for joint authorship is that both parties intend that the copyright be jointly owned. Some courts even hold that both parts of the combined work be able to stand independently as copyrightable works. The photographer did not intend that the work be jointly owned.
I actually think there's a better argument for #2 than there is for #3, although not by much. To conclude that the student owns the copyright, you'd have to argue that the photographer is a mere puppet, that despite his talents as a photographer (did I forget to assume that he's a professional) and the student's lack of talents in that regard (did I forget to assume that she hasn't yet studied photography?), the student is calling all the, uh, shots. She set up the whole thing. It's in her studio -- garage? She purchased the lighting. She arranged the lighting and the backdrop. She told the photographer where to stand, what angle to hold the camera at, the camera settings, and said 1-2-3-click. He clicked, and for this he charged her a fee. Even more foolishly, she paid.
I don't think so.
Because of my original assumption that the picture was copyrightable, someone has to own it, and there's no one left except the poor little stock (not me) photographer.
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