'Gorgeous Photograph, Limited Copyright' by Justin Hughes in
Routledge Companion to Copyright and Creativity in the 21st Century (Routledge, 2020, Forthcoming)
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This chapter explores how copyright protection of photographs is shaped by the dual nature of photography as both creative expression and a system of recording reality. Starting with the Supreme Court’s 1884 Burrow-Giles Lithographic Co. v. Sarony opinion, the chapter explains how under American copyright law a photograph will have copyright protection only if it has original expression; that original expression can take the form of composition, selection of background, lighting, angle, shading, positioning of subjects, and a whole variety of “inputs” in the process of creating the photograph. Indeed, reading court decisions carefully it is clear that courts look for creativity less in the final photographs and more in the process of photography (including choice of camera, filters, lenses, and processing techniques, both analog and digital).
The chapter describes how we can generally organize the recognized sources of copyrightable expression in a photograph into three categories:
[a] creative choices in constructing the scene;
[b] creative choices in initial image capture, and
[c] creative choices in manipulating the image.
The chapter then explores what this legal framework means for modern practices, concluding that many photographic and audiovisual records do not merit copyright protection; that photojournalists will often have only “thin” copyright protection over their work; that copyright law is only a very limited tool against “deep fakes;” and that most selfies do get at least some copyright protection.
The chapter concludes with a discussion of the fair use doctrine and how the emergence of “transformative use” analysis threatens the work of freelance photographers far more than other creative professionals. Fortunately, it appears that appellate courts have recognized that concern and have appropriately dialed back “transformative use” analysis as it applies to photography.
