Due to the technological advances of cell phones almost everybody is a photographer in today’s day and age. Furthermore, with the rise of social media, it is easier than ever to share your latest photos online for the world to see. With the abundance of photographs taken every day combined with the ease of sharing it is no wonder why copyright infringement is prevalent in today’s online marketplace.
Copyright offers protection for all original works of authorship. A common question we receive is, since there are billions of photographs out there, can my photographs really be original? The answer is yes. With respect to photographs, a picture can be original even if the underlying subject of the photograph is not copyrightable. In fact, when taking a photograph, three things may be original about your shot.
(1) CREATING THE SUBJECT OR THE SCENE TO BE PHOTOGRAPHED.
Originality can exist where a photographer creates the subject or the scene to be photographed. For example, if you dress up your pet in an original way you will have copyright protection for any photographs you take of your dressed up pet. An example is illustrated below.
In the above photograph, not only would you have copyright protection for the photograph itself, but since the subject was created by you, copyright protection would extend to the subject of the photograph as well. This means that not only can no one legally copy your photograph without your permission, but it is likely that no one can dress up their cat the exact way as the above photograph and photograph it.
(2) RENDITION
A photograph may be original based on how an object or scene is depicted. Rendition has to do with the specialties of a photograph, such as, angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques, etc. Accordingly, even if you don’t create the subject to be photographed, you may have originality in how you choose to photograph the subject. A photograph of a BMW is shown below as an example.
The underlying subject is not copyrightable unless the BMW was created by you and has yet to be released publicly. What makes the above photograph original is the totality of the precise lighting selection, angle of the camera, lens and filter selection, etc. For the most part, unless a photograph replicates another work with total or near-total fidelity, it will be at least somewhat original in the rendition.
(3) TIMING
The final way a photograph can be original is if you are in the right place at the right time. An example is the iconic photograph of a sailor kissing a nurse in Times Square on the day of Japan’s surrender in World War II.
Originality exists in this photograph because the photographer happened to be in the exact spot he was when the kiss happened. However, since the photographer did not create the shot, copyright protection does not extend to the subject of the photograph. Therefore, if the same couple kissed at a later date and it was photographed by another, the later photograph would not be infringing. Furthermore, since the kiss was in public, if any other witnesses happened to photograph the kiss they would also not be infringing.
Those are the three ways in which a copyright can be original. It is important to keep in mind that not all copying of a copyrighted work is infringement. The legal doctrine of fair use is a defense to some instances of copying.
If you have any questions regarding copyrights, branding, trademarks, patent planning or other intellectual property matters, please contact Garcia-Zamor Intellectual Property Law, LLC.
