There is no doubt that photographs are capable of being protected by copyright: in fact they are legally defined in law as being so. However, different jurisdictions take varied approaches when deciding which photos can claim protection and, in an age when sharing research and creativity knows no national boundaries, it is important for those producing photographic material to understand that their work may not achieve the same protection in all jurisdictions.
There are [at least] three important issues when considering whether a photo is protected by copyright: process, content and manipulation.
Under UK law the very process of taking a photo generates a copyright work. If a group of ramblers climb a hill with a spectacular view and each takes a photo of the view, the end products are likely to look very similar if not identical. There is no infringement because each rambler chose their position, camera, shutter speed and content individually without copying anyone else’s photo. The outcome may be of limited quality and the content banal, but a photo is a photo. What is in the photo is of little importance. In one case photographs of antique furniture were copied from a commercial publication for use on a website but the person making the copies claimed they were not copyright as the items photographed were pieces of furniture and not protected. The judge ruled that a photo of any three-dimensional object must be copyright because skill and judgement had been exercised in terms of selecting and positioning the object, lighting, etc. She went on the say that any other interpretation would deny copyright to images which individuals, as well a society, might value then or in the future. In fact, it was observed that the only exception might be a photo of a perfect sphere because from whatever position the photo was taken it would always look the same so no choices were possible in this instance. In this case the process is considered the defining element to determine whether a photo is protected. Therefore in the UK, if you take a photo, whether holiday snaps or highly sophisticated images of scientific or medical processes, they are capable of protection.
However, in the USA a quite different approach is adopted which focuses on the content. This is clearly demonstrated by two cases, the second of which is very recent and sparked off the idea for this piece. A UK company specializes in producing high quality images of classical paintings which have long since been out of copyright (Rembrandt, Holbein, for example) as well as acting as a licensing agency for contemporary artists and their estates. These images are then licensed to users for various purposes (publication, advertising, academic research, etc.) and made available via the internet. A US company copied some of these images, claiming that the paintings were out of copyright so there was no infringement. The supplier of the photos countered this by saying that it was the photos that were copyright and copying and selling them was an infringement. The process of choosing the subject, setting up the lighting, choosing the type of camera and technical process to produce an image as close to the original as possible was a highly technical process which demonstrated knowledge, skill and labour. However, the US court took a very interesting alternative interpretation: the nearer the reproduction resembled the original the less likely the image was able to be copyright. In fact, if near perfection was achieved then this became nothing more than an exact copy of the original and therefore could not be copyright as copies of pre-existent works do not qualify for copyright protection.
In a very recent case involving photos of cosmetic dental surgery the surgeon took photos of the patient’s teeth before and after the procedure. He later found that a competitor had used these photos for advertising purposes and sued for infringement. However, it was argued that the photos failed to demonstrate the necessary creativity because there were limited ways of posing the patient to photograph the teeth, such as tilting the head or getting the patient to smile. Therefore the photos were no more protected “than pictures of food plates in a Chinese restaurant”. This last remark highlights the difference between the two approaches of process and content. In the UK the Chinese restaurant owner would certainly be able to claim copyright in the photos of his offerings!
Finally, the question of manipulation. Photos are easily copied, items airbrushed out, others inserted, colours changed and ambience amended (sepia instead of black/white for example). Taking existing photos and changing them in these ways may give the person doing the manipulation copyright in the new photo but it will still infringe the rights of the original photographer. In a case involving images on souvenirs of London and packaging for tea, the dispute was about a black and white photo of Westminster Bridge and the Houses of Parliament with a red Routemaster bus crossing the bridge. The souvenir company claimed that very a similar image used by a tea manufacturing company which infringed the photos. However it was ruled that, although the two photos were very similar, neither was a totally original as they had both been engineered to superimpose the red bus on the black and white photo. The tea company was found to have copied a substantial part of the souvenir company’s photo because it had taken the whole concept of the red bus on a black and white photo. This demonstrated that in UK law you must go through the full process of producing the photo independently of anyone else rather than relying on their skill and labour to produce a similar thing.
The conclusion of all this is that anyone involved in academic research and producing images of their work needs to be certain that the images are protected in UK law but, if they intend the images to be seen in other jurisdiction they need to be aware that different rules for originality apply. For example, a photographic image of a medical procedure might only be achievable by using one particular type of camera or one specific position for taking the photo, as, for example, a colonoscopy. In the US this might be seen as not showing sufficient skill and creativity but in the UK it would qualify for protection. Similarly images of two-dimensional artistic works may also not qualify under US law. Students and researchers need to take care when releasing their work onto the internet without considering these situations.
About the Author
Graham Cornish has worked in copyright since 1983. He has run several hundred training courses on copyright, and has written a similar quantity of articles and papers on the topic for libraries and archives from many different perspectives. His publications include Copyright: interpreting law for libraries, archives and information service (now in its 6th. edition), Keep it legal: copyright guidance for school library staff and Understanding copyright in a week. He was President of the Library Association in 2000. For eighteen years he was copyright advisor to the British Library. He now works as an independent advisor and trainer on copyright under the name “©opyright Circle”, working with libraries, archives, museums, universities, publishers, government departments and any other organisation needing copyright advice.
Graham P Cornish