After 180 years of discussion, ever since Louis Daguerre –  the founding father of photography, has taken a shot of ‘Boulevard du Temple, Paris, 8 in the morning’ hardly anybody asked this question again: can a photograph be art? From the early reception as a mechanical recording, the medium of photography has come a long way to becoming a full-fledged partner of pictorial, graphic and sculptural works, and remained one of the most popular type of visual art.

Night Watch by Rembrandt

© Everett – Art / Shutterstock.com

Every day all over the world millions of images are being taken. Is every expression of photo creators protected by law?

The idea of copyright law is to balance between the rights of creators and the rights of the public – the former to have control over their artistic work and reap the fruits of their own efforts and creativity, and the latter to use and enjoy this work.

Copyright law varies between national jurisdictions. Particularly between the common law system (in Anglo-Saxon countries) and continental system based on the Roman law originating in Europe. However some basic criteria of acquiring legal protection do exist. They are established by international multilateral agreements like the Berne Convention for the Protection of Literary and Artistic Works (1886) adopted over the years by over 170 countries, including the United States.

Under what criteria your photograph must fall within to be protected?

  1. Give me an author!

The photo is a result of creative activity of its author. As an author the law means a human. The issue is not as obvious as it seems to be at first glimpse. The reason is the black macaque from Indonesia who took two selfies using David Slater’s camera.  The story began in 2011 when the British photographer travelled to Sulawesi to follow troop of the endangered species and tried to tame the monkey with a camera for better artistic result. The famous photo, which immediately appeared in social media and went viral, led him to court where he has been fighting for years over who has the right to the image, sued by the macaque represented by the PETA organisation. What is known for sure – Slater is not the copyright owner of this photo as he didn’t push the shutter button. The monkey does not seem to be the copyright owner either… but its rights are still under dispute *.

  1. The photo is original

What is the attribute of originality required by law? A sceptic could say that nothing is original, we all build from what we have already seen. In legal aspect, to be original an author must create the photo independently. No matter what the artistic value of work is, it’s protected by copyrights if was not copied from others. It must come from the creator’s idea and subjective opinion that nobody has created work of art like this before. What really matters is our individual approach and the way we transfer it onto a tangible medium. That’s why passport photos are not subject to copyright.

  1. What about creativity?

All that is required from photographs, as well as other works of art, is a minimal degree of creativity. It’s always a subject of individual opinion, but for the photo to be considered creative, the author has to be free to choose a place and moment of taking photo, frame and angle of viewing, distance from the photographed objects, light or other details. Even if photo is the subject of a contract with specified suggestions and requirements, still creator’s invention is necessary.

What about reportage, and specifically – war photography which is often a result of an unintentional process, effect of unplanned decisions? Still the same rule applies there. As long as it has some creative elements, it’s protected.

Now let’s leave the battlefield and jump to a museum. Is a photo of another piece of art legally protected? Gijsbert van der Wal’s photo of teenagers looking down at their smartphones in front of Rembrandt’s masterpiece „The Night Watch” taken in Rijksmuseum, Amsterdam caused a stir in social media. No matter what’s the interpretation:  does it show unhealthy interest in digital media or deep research for a school assignment, it is an example of a copyrighted work. Why? First of all, it’s original, because nobody has that exact shot with those people. Second of all, the image is an expression of author’s creativity, his ability to observe, and his social sensitivity. „The Night Watch” builds a context for the image, but it’s not taking up the whole photograph. If the entire photo would be just Rembrandt’s painting with frames, it couldn’t receive copyright protection. All original and creative work would be of the painter, not the photographer.

 4. A tangible medium is needed

The creative work starts to be protected in the moment of its externalization. It has to be executed in a way that allows at least one person to know it. No matter if your photo is on paper, canvas or in a jpg file. The expression of the idea is important, not the idea itself. If you only have a great vision for a unique photo in your mind, even if it’s shared with somebody, it cannot be copyrighted. You need tangible medium to express it.

In the majority of countries and according to the Berne convention, copyright protection is automatic, without any registration or other formalities. However, in some countries (like the United States) registration gives some distinct advantages: it can help solve disputes over ownership or facilitate financial transactions.

* September 11th, the day of this publication was also the day of the settlement between Slater’s and PETA organisation on behalf of monkey. Both parties asked appeals court to drop the lawsuit and vacate a lower decision that found the macaque could not own the photo’s copyright. Photographer agreed to donate 25% of future revenue of disputed images for charitable organisations protecting endangered macaques. In the joint statement both parties expressed notion for supporting fight for legal rights to nonhuman animals.

Author: Kinga Kijak-Markiewicz

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