Re: A mere photograph

On 4/27/97, Lesley Ellen Harris <copyrtlaw[_at_]aol.com> wrote:
>
> On 97-04-25, Larry Urbanski <larryu[_at_]moviecraft.com> wrote:
> >
> > To my knowledge the photograph would have automatic copyright
> > protection. If, of course, you feel "your" photograph did not
> > contain "skill and labour" you need not enforce your copyright.
> >
> > Since most photographers feel "creation is copyright" they would
> > enforce their automatic copyright protection.
>
> But how does this work in the "real" world? Are most photographs
> protected by copyright? Are schools and libraries for instance
> clearing the rights in "mere" photographs of items?

Lesley,

I think what happens here is that nobody bothers to clear rights and register copyright to "mere" photographs (i.e. those that are not viewed as having originality, or a potential economic value), but when (and if) they seem to have worth, then, in retrospect copyright is claimed.

Take museums for example; they don't register their "reproductive" photos. (Some claim that if they did the US copyright office would reject them as uncopyrightable; but, that's another story.) However, if someone uses a photo in such a way that a museum believes that it interferes with its mission or with its ability to raise funds, then they will figure out some way to stop the use. That is probably what happened with the Rock & Roll Hall of Fame when someone began to sell a photo poster of their I.M.Pei building. In the U.S. code it is not a violation of a building's copyright to distribute pictures of it taken from a public space, so the museum sued the photographer for trademark infringement. Whether that case had merit or not, it doesn't matter much: they won.

But what is a "mere" photo anyway. I assume you mean one without any aesthetic pretensions, i.e. no intention to be original or creative. But when the knowledge of the intention of the photographer fades or when you can't trust the declaration of the photographer, what is left? A photo which, despite the intention that made it, may or may not encapsulate something original. Were I to give the term "mere" any meaning at all, it would account for photos at the near end of a spectrum of works that had increasingly obvious creative or original aspects. And the harder I looked, the more difficult it would be to say that anything is a "mere" photo -- and this includes photobooth photos and other automated productions.

Robert Baron
rabaron[_at_]pipeline.com Received on Tue Apr 29 1997 - 12:15:52 GMT