‘Copyright in a photograph’

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The following post appears on the ‘Mediation of Art & Cultural heritage Disputes’ page at www.carlislam.co.uk

Copyright subsists in original artistic works,s.1(1)(a) of the Copyright Designs and Patents Act 1988 [‘CDPA’]. ‘Artistic work’ includes a ‘photograph’. ‘Photograph’ means a ‘recording of light or other radiation on any medium on which an image is produced or from which an image made by any means be produced and which is not part of a film’ (s.4(2) CDPA).

In Temple Island v. New English Teas [2012] WSPCC 1 the claimant claimed infringement of copyright. Judge Birss KC in finding in in favour of the Claimant stated: ‘This superficially simple question involves a tricky area of law, i.e. copyright in photographs; and, in the end, turns on a disputed qualitative judgment. … A photograph of an object found in nature or for that matter a building, which although not natural is something found by the creator and not created by him, can have the character of an artistic work in terms of copyright law if the task of taking the photograph leaves ample room for an individual arrangement. What is decisive are the arrangements (motif, visual angle, illumination etc) selected by the photographer. … What then is the scope of photographic copyright? The question is answered by drawing attention to 3 aspects in which there is room for originality in photography:

  1. Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;
  2. Residing in the creation of the scene to be photographed;
  3. Deriving from being in the right place at the right time .

[The] composition of a photograph is capable of being a source of originality. The composition of an image will … derive from the “angle shot” … but also from the field of view … elements which the photographer may have created and … elements arising from being in the right place at the right time. The resulting composition is capable of being the aggregate result of all these factors … Ultimately … the composition of the image can be the product of the skill and labour (or intellectual creation) of a photographer and … skill and labour/intellectual creation directed to that end can give rise to copyright.

Copyright is infringed by reproducing the whole or a substantial part of the work in a material form (s.16  and s.17 CDPA). [A] “substantial part” is a matter of quality not quantity. … Copying a photograph does not require a facsimile reproduction, it is enough to recreate the scene or a substantial part of it.  … As a matter of principle photographs, as one species of artistic work in s.4 of the Act, are not to be treated differently from other artistic works and  one consequence must be that s.17 cannot be construed as referring only to facsimile reproductions of a photograph itself. … Visual significance must also be relevant to infringement and to the question of whether a substantial part of an artistic work has been taken. What falls to be considered, in order to decide if a substantial part of an artistic work has been reproduced, are elements of the work which had visual significance. What is visually significant in an artistic work is not the skill and labour (or intellectual creative effort) which led up to the work, it is the product of that activity. The fact that the artist may have used commonplace techniques to produce his work is not the issue. What is important is that he or she has used them under the guidance of their own aesthetic sense to create the visual effect in question. Just because the Act provides for copyright in these original artistic works irrespective of their artistic quality (s.41(a) does not mean that one ignores what they look like and focuses only on the work which went into creating them.  … On the question of copying, I find the common elements between the defendants work and the claimant’s work are causally related. In other words, they have been copied.’

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