Thursday, October 25, 2012

Photos Are Creative Works

As with anything else, photographs must have some minimum creativity to enjoy copyright protection. But almost every photograph qualifies.*

Consider this picture of Autumn colors, which I took earlier this month at Crapo Park in Burlington, Iowa. I didn't create the subject, nor did I stage the picture. But I did choose the camera settings and select the scene that filled the frame. I even get credit for being in the right place at the right time.

Then there's the second picture, which I used in last month's post on art versus science. The posed subject may not look very creative, but the copyright laws say it is. The first holder has a candlestick in it to demonstrate its function, and the second is empty so the viewer can get a better idea of its design. All purposefully done to make a point.

Because both photos meet the standards for creativity, you can't use either without my permission.

There is a distinction between natural subjects and posed pictures, however. I can stop you from using my photo of the leaves in Crapo Park, but I can't prevent you from going there at the same time next year and taking your own photograph. With a posed picture, I can keep you from copying the pose as well as the actual photograph. That's because the subject is also a result of my creativity.

As with my photographs, yours are also copyrighted. That's a good thing.

Because it isn't just our writing that is creative.

Kathryn Page Camp
* For an in-depth discussion of the elements that make a photograph creative, see Mannion v. Coors Brewing Co., 377 F.Supp.2d 244 (S.D.N.Y. 2005).

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