US copyright act and photographs

 

Photography was one of the first new technologies that challenged copyright law. In 1865, the US Congress amended the Copyright Act to add photographs to the classes of copyrightable works. 1865 was the final year of the US Civil War, which had been documented by photographers such as Matthew Brady. Brady tried to register some of his photographs for copyright before the 1865 act went into effect. [1]

 

 

Copyright in a photo of Oscar Wilde: Burrow-Giles Lithographic Co. v. Sarony

 

In 1884, the US Supreme Court upheld copyright protection in a photograph of Oscar Wilde in the case of Burrow-Giles Lithographic Co. v. Sarony.[2]  Mr. Sarony, one of the best-known portrait photographers in New York in his day, charged the lithographic company with having violated his copyright in a photograph entitled ‘Oscar Wilde, No. 18.’ Burrow-Giles had sold thousands of unauthorized copies of this photograph.

 

The picture was a cabinet photograph, not a spontaneous one. As the US Supreme Court noted, the photographer had posted Oscar Wilde in front of the camera, selected and arranged the costume, draperies, and other various accessories in the photograph, arranged the subject so as to present graceful outlines, arranged and disposed the light and shade, suggested and evoked the desired expression.[3]

 

The Supreme Court added: “the terms ‘author,’ ‘inventor,’ and ‘designer,’ as used in the art of photography and in the complaint, mean the person who so produced the photograph.’” In other words, the photographer had made the photograph “entirely from his own original mental conception”,[4] and the Supreme Court found the photograph “to be an original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is the author.”[5]

 

The Burrow-Giles v. Sarony decision essentially dismissed the argument that the taking of a photograph is a merely mechanical process that involves no original authorship. The Supreme Court confirmed that, if a photographer so arranges the pose, costume, and expression of the photograph’s subject as to produce an original effect, the picture is entitled to copyright protection.

 

 

Don’t copy the copy: Bleistein v. Donaldson Lithographing

 

In the case of Bleistein v. Donaldson Lithographing, the Supreme Court found that pictorial illustrations might be protected by copyright law, even if they are drawn from real life. The works in question were “chromolithographic” advertisements of a circus, depicting a number of persons performing in a circus. “Chromolithographs” are pictures made by use of a special printing process, enabling print in various colors.

 

The Supreme Court held that such pictures are subject to copyright protection.[6] The Court found that the result of the case could not be affected by the fact that the pictures represented actual groups or visible things and that the pictures were “drawn from the life”, as opposed to a “composed” subject.[7] In this regard, the Supreme Court declared: “Others are free to copy the original. They are not free to copy the copy.”[8] (meaning that others can copy the real event or nature, but not the original expression).[9]

 

 

Copyright on a picture of a public building: Pagano v. Chas. Beseler Co

 

In 1916, the District Court of the Southern District of New York, had to decide on a case involving a less stylized photograph than the one at stake in Burrow-Giles v. Sarony.  In the case of Pagano v. Chas. Beseler Co., the District Court found that a photograph of a public building and its surrounding scene was an original work that comes within the subject matter of copyright.[10] The subject of the photograph was a scene on Fifth Avenue in New York, which included the Public Library.

 

As to the originality of the photograph, the District Court stated: “It undoubtedly requires originality to determine just when to take the photograph, so as to bring out the proper setting for both animate and inanimate objects, with the adjunctive features of light, shade, position, etc.”[11] The photograph was considered protected by copyright, due to its original character, and the defendant’s work was considered an infringement of the plaintiff’s copyright.

 

 

Lack of originality: Oriental Art Printing, Inc. v. Goldstar Printing Corp.

 

This does not mean that all photographs are per se considered original. For instance, in Oriental Art Printing, Inc. v. Goldstar Printing Corp., the Southern District Court of New York refused copyright protection to photographs, because they “lack any artistic quality.”[12] Nowadays, the required level of originality is relatively low,[13] meaning that photographs will quite easily be considered copyrightable.

 

Elements that are often taken into account when deciding on the originality of a photograph are the selection of lighting, filter, camera, lens, film, camera angle, shutter speed, processing techniques, computer enhancements, time and place when the photograph is taken and creation of the scene or subject of the photograph.[14] The fact that a photograph is intended for commercial use has in principle no influence on its copyright status.[15]

 

 

Copyright on news pictures: Time Inc. v. Bernard Geis Associates

 

The fact that the subject of a photograph (or a movie) is a newsworthy event does not deprive it from copyrightability. For instance, in Time Inc. v. Bernard Geis Associates, the court found that the newsworthy events captured by the work did not exclude copyright protection for the work.[16]  In this particular case, the author of the film had captured, by mere chance, the shooting of President Kennedy. This is a direct consequence of the distinction between fact/idea and expression (the photographer cannot claim exclusive rights over the object depicted in the photograph). Only when the photograph is original in creating its subject matter, will that specific subject matter be covered by copyright.[17]

 

 

Bart Van Besien

Attorney at law – lawyer

Belgium

 

[1] See for more details: William F. Patry, Patry on Copyright, Thomson Reuters, 2013, § 3:118; and Farley, Christine Haight, “The Lingering Effects of Copyright’s Response to the Invention of Photography”, U. Pitt. L. Rev., 2004, Vol. 65, 385-456.

[2] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

[3] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, at 55 (1884).

[4] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, at 60 (1884).

[5] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, at 60 (1884).

[6] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 298, at 299 (1903).

[7] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 298, at 299 (1903).

[8] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 298, at 299 (1903).

[9] Some authors regret that the Supreme Court in Bleistein opened the gates towards copyright protection for almost every kind of work imaginable (in that sense, Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use, University of Chicago Press, Chicago and London, 2011, 31).

[10] Pagano v. Chas. Beseler Co., 234 F. 963 (1916).

[11] Pagano v. Chas. Beseler Co., 234 F. 963, at 964 (1916).

[12] Oriental Art Printing, Inc. v. Goldstar Printing Corp., 175 F. Supp. 2d 542, at 546 (S.D.N.Y. 2001).

[13] See the Supreme Court decision in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, at 362 (1991).

[14] See for instance, Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130, at 143 (1968): the court referred to the fact that the author of the film selected “the kind of camera (movies, not snapshots), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were to be taken, the time they were to be taken, and (after testing several sites) the spot on which the camera would be operated”; Ring v. Estee Lauder, Inc., 874 F.2d 109, at 109 (2d Cir. 1989); Rogers v. Koons, 960 F.2d 301, at 307 (2d Cir.1992): “Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”); Marco v. Accent Pub. Co., 969 F.2d 1547 (3d Cir. 1992); SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, at 310 (S.D.N.Y. 2000); Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444, at 452-454 (S.D.N.Y. 2005); and Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, at 519 (7th Cir. 2009).

[15] See for instance, SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, at 311 (S.D.N.Y. 2000).

[16] Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130, at 143 (1968).

[17] See Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444, at 454 (S.D.N.Y. 2005): “Thus, an artist who arranges and then photographs a scene often will have the right to prevent others from duplicating that scene in a photograph or other medium.”