Protectible Elements of Photographs

It is well-established that "[t]he sine qua non of copyright is originality" [29] and, accordingly, that "copyrightprotection may extend only to those components of a work that are original to the author." [30] "Original" in the copyright context "means only that the work was independently created by the author (as opposed to copied from otherworks), and that it possesses at least some minimal degree of creativity." [31]It sometimes is said that "copyright in the photograph conveys no rights over the subject matter conveyed in the photograph." [32] But this is not always true. It of course is correct that the photographer of a building or tree or otherpre-existing object has no right to prevent others from photographing the same thing. [33] That is because originality depends upon independent creation, and the photographer did not create that object. By contrast, if a photographer arranges or otherwise creates the subject that his camera captures, he may have the right to prevent others fromproducing works that depict that subject. [34]Almost any photograph "may claim the necessary originality to support a copyright." [35] Indeed, ever since the Supreme Court considered an 1882 portrait by the celebrity photographer Napoleon Sarony of the 27-year-old OscarWilde, [36] courts have articulated lists of potential components of a photograph’s originality. [37]    [451] These lists, however, are somewhat unsatisfactory.First, they do not deal with the issue, alluded to above, that the nature and extent of a photograph’s protection differs depending on what makes that photograph original.Second, courts have not always distinguished between decisions that a photographer makes in creating a photograph and the originality of the final product. Several cases, for example, have included in lists of the potential componentsof photographic originality "selection of film and camera," [38] "lens and filter selection," [39] and "the kind ofcamera, the kind of film, [and] the kind of lens." [40] Having considered the matter fully, however, I think this is not sufficiently precise. Decisions about film, camera, and lens, for example, often bear on whether an image is original. But the fact that a photographer made such choices does not alone make the image original. "Sweat of the brow" is notthe touchstone of copyright. [41] Protection derives from the features of the work itself, not the effort that goes into it.This point is illustrated by Bridgeman Art Library, Ltd. v. Corel Corp., [42] in which this Court held that there was no copyright in photographic transparencies that sought to reproduce precisely paintings in the public domain. To be sure, a great deal of effort and expertise may have been poured into the production of the plaintiff’s images, including decisions about camera, lens, and film. But the works were "slavish copies." They did not exhibit the originalitynecessary for copyright. [43]The Court therefore will examine more closely the nature of originality in a photograph. In so doing, it draws on the helpful discussion in a leading treatise on United Kingdom copyright law, [44] which is [452] similar to our own with respect to the requirement of originality. [45]A modern work strikingly original in timing might be Catch of the Day, by noted wildlife photographer Thomas Mangelsen, which depicts a salmon that appears to be jumping into the gaping mouth of a brown bear at Brooks Fallsin Katmai National Park, Alaska. [54] An older example is Alfred Eisenstaedt’s photograph of a sailor kissing a youngwoman on VJ Day in Times Square, [55] the memorability of which is attributable in significant part to the timing of its creation.Copyright based on originality in timing is limited by the principle that copyright in a photograph ordinarily confers no rights over the subject matter. Thus, the copyright in Catch of the Day does not protect against subsequent photographs of bears feasting on salmon in the same location. Furthermore, if another photographer were sufficiently skilled and fortunate to capture a salmon at the precise moment that it appeared to enter a hungry bear’s mouth — andothers have tried, with varying degrees of success [56] — that photographer, even if inspired by Mangelsen, would not necessarily have infringed his work because Mangelsen’s copyright does not extend to the natural world he captured.In practice, originality in timing gives rise to the same type of protection as originality in the rendition. In each case, the image that exhibits the originality, but not the underlying subject, qualifies for copyright protection.It was originality in the rendition that was at issue in SHL Imaging, Inc. v. Artisan House, Inc. [49] That case concerned photographs of the defendants’ mirrored picture frames that the defendants commissioned from the plaintiff. The photographs were to be used by the defendants’ sales force for in-person pitches. When the defendants reproduced the photographs in their catalogues and brochures, the court found infringement: "Plaintiff cannot prevent others from photographing the same frames, or using the same lighting techniques and blue sky reflection in the mirrors. What makes plaintiff’s photographs original is the totality of the precise lighting selection, angle of the camera, lens andfilter selection." [50] Again, what made the photographs original was not the lens and filter selection themselves. It was the effect produced by the lens and filters selected, among other things. In any case, those effects were the basis of the originality of the works at issue in SHL Imaging.By contrast, in Bridgeman Art Library, the goal was to reproduce exactly other works. The photographs were entirely unoriginal in the rendition, an extremely unusual circumstance. Unless a photograph replicates another work with total or near-total fidelity, it will be at least somewhat original in the rendition.a. RenditionFirst, "there may be originality which does not depend on creation of the scene or object to be photographed .. and which resides [instead] in such specialties as angle of shot, light and shade, exposure, effects achieved by means offilters, developing techniques etc." [47] I will refer to this type of originality as originality in the rendition because, to the extent a photograph is original in this way, copyright protects not what is depicted, but rather how it is depicted. [48]b. TimingA photograph may be original in a second respect. "[A] person may create a worthwhile photograph by being at theright place at the right time." [51] I will [453] refer to this type of originality as originality in timing.One case that concerned originality in timing, among other things, was Pagano v. Chas. Beseler Co., [52] which addressed the copyrightability of a photograph of a scene in front of the New York Public Library at Fifth Avenue and Forty-Second Street:The question is not, as defendant suggests, whether the photograph of a public building may properly be copyrighted. Any one may take a photograph of a public building and of the surrounding scene. 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.. The photographer caught the men and women in not merely lifelike, but artistic, positions, and this is especially true of the traffic policeman.. There are other features,which need not be discussed in detail, such as the motor cars waiting for the signal to proceed. [53]c. Creation of the SubjectThe principle that copyright confers no right over the subject matter has an important limitation. A photograph may beoriginal to the extent that the photographer created "the scene or subject to be photographed." [57] This type of originality, which I will refer to as originality in the creation of the subject, played an essential role in Rogers v. Koons[58] and Gross v. Seligman. [59][454] In Rogers, the court held that the copyright in the plaintiff’s photograph Puppies, which depicted a contrived scene of the photographer’s acquaintance, Jim Scanlon, and his wife on a park bench with eight puppies on their laps, protected against the defendants’ attempt to replicate precisely, albeit in a three dimensional sculpture, the content ofthe photograph. [60] Although the Circuit noted that Puppies was original because the artist "made creative judgments concerning technical matters with his camera and the use of natural light" [61] — in other words, because it wasoriginal in the rendition — its originality in the creation of the subject was more salient. [62] The same is true of the works at issue in Gross v. Seligman, in which the Circuit held that the copyright in a photograph named Grace ofYouth was infringed when the same artist created a photograph named Cherry Ripe [63] using "the same model in the identical pose, with the single exception that the young woman now wears a smile and holds a cherry stem between herteeth." [64]To conclude, the nature and extent of protection conferred by the copyright in a photograph will vary depending on the nature of its originality. Insofar as a photograph is original in the rendition or timing, copyright protects the image but does not prevent others from photographing the same object or scene. Thus, the copyright at issue in SHL Imaging does not protect against subsequent photographs of the picture frames because the originality of the plaintiffs’ photographs was almost purely in the rendition of those frames, not in their creation or the timing of the scene captured. In Pagano, the timing of the capture of the scene in front of the New York Public Library and its rendition were original, but the copyright in the Pagano photograph does not protect against future attempts to capture a scene in front of the same building, just as a copyright in Catch of the Day would not protect against other photographers capturing images of salmon-eating bears.By contrast, to the extent that a photograph is original in the creation of the subject, copyright extends also to that subject. Thus, an artist who arranges and then photographs a scene often will have the right to prevent others fromduplicating that scene in a photograph or other medium. [65].. It is the entire image — depicting man, sky, clothing, and jewelry in a particular arrangement — that is at issue here, not its individual components. The Second Circuit has rejected the proposition that:in comparing designs for copyright infringement, we are required to dissect them into their separate components, and compare only those elements which are in themselves copyrightable.. [I]f we took this argument to its logical conclusion, we might have to decide that `there can be no originality in a paintingbecause all colors of paint have been used somewhere in the past. [68]Mannion v Coors Brewing, 377 F.Supp.2d 444, 2005

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