On 4/23/97, Lesley Harris <copyrtlaw[_at_]aol.com> wrote:
>
> If I take a "mere" photograph of a copyright work, under US Copyright
> Act, would that photograph automatically have copyright protection or
> must I put some "skill and labour" into taking the photograph? If
> protected, is it protected to the same degree as any other copyright
> work?
Lesley, et al.
The answer to this question has been disputed among various members of the art community for some time. One group argues that the photograph contains no "original" matter and therefore does not merit copyright status. (In the US "originality," not just labor and skill, is required to warrant copyright.) To this group, composed mainly of artists and visual resources curators, many photographs of public domain objects cannot be copyrighted.
Further, following the above, there will be some photographs that obviously require aesthetic judgement -- such as those of architecture and sculpture -- and some that require varying degrees of lesser originality, mainly two-dimensional art.
Museums and object owners, however, argue that such photographs are copyrightable, and use copyright to justify a fairly large business in selling rights and licensing use of the intellectual property attached to their holdings and to protect themselves from unauthorized subsequent use of the resulting published images.
Art historians are to be found on both sides this debate. On one hand they use slides and reproductions of works of art in their teaching and publications as if they convey at least something of the original, or at least expect them to, often (but not always) ignoring the differences between the original and the object.
But these differences are important, some say. Should they be interpreted as differences that make the reproduction lesser than the original -- a map of the original or an aide memoire? Or are these differences somehow introduced by the copyist photographer?
Seen as reproductive art, art historians, looking at the issue from the other side, would look at such photographs as conditioned by the stylistic preferences of the photographer made manifest through the technical decisions made or inherited in the process of photography -- such that, taken together throughout the history of photography, it may be able to write a history of the changing tastes in reproduction art. Looked at that way, there is no such thing as a "mere" photograph. The naive camera lens is a fiction, begun in the 19th century, that holds that photography reproduces the world "as is" rather than as viewed, seen or interpreted.
As far as I know, there are no cases brought against anyone who has used a "copyrighted" photo without permission to reproduce a work in the public domain. Given the above analysis, I suspect that no one really wants this issue decided and no one is willing to let the law sort out the issues.
More information and discussion of greater depth on this topic may be found in the recent issue of VISUAL RESOURCES: "Copyright and Fair Use: The Great Image Debate." Interested parties can follow the URL that appears in the signature portion, below.
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