Written by Amber Shultz*
Edited by Barry Neil Shrum, Esq.
A recent headline on the BBC News was “Jersey Gorilla Turns Photographer at Durrell Park.” The story was about a silverback gorilla at Durrell Wildlife Park in New Jersey named Ya Kwanza, who was given a high-definition camera in an indestructible box. While examining the bazaar looking box, the gorilla inadvertently took a series of self portraits. Can these photographs, indisputably taken by Ya Kwanza, be described as original and creative? If so, are they entitled to protection pursuant to U.S. copyright law, thus giving certain rights to the gorilla?
This begs the question, “What makes a photograph original and protectable under copyright?” This query has perplexed copyright lawyers and courts since photography became protectable under copyright law. Traditionally, the courts have used the concept of an idea/expression dichotomy in order to set the perimeters of an expressed idea within the art of photography.
One of the first cases analyzing the protection of photography under copyright law is the 1884 case of Burrow-Giles Lithographic Co. v. Sarony. In this case, a well-known photographer, Napoleon Sarony, filed a lawsuit against Burrow-Giles Lithographic Company for marketing his photographs of the writer Oscar Wilde without his permission. The court ruled in favor of Sarony, upholding the section of the Copyright Act of 1870 that extended copyright to photographic works. In its defense, Burrow-Giles argued that photography was not “art” but rather, mere mechanics. The court disagreed and found that Sarony’s photo of Wilde was an original expression of an idea. In doing so, the court found that the scene set by Sarony in his photo, including the way he posed Wilde, the background he chose, and similar factors, moved the photograph closer to an original expression than a mere idea. This decision was an early precursor to using expression in a photographic work as a means of identifying which works are protected under copyright law.
Photography is a medium of art that can stretch our concept of “originality” and the idea/expression dichotomy. While it may be true that the act of making a photo is mostly mechanics, it is also true that the act of photography can, in some cases, be considered an art. Courts have consistently applied these principles, not only stopping others from directly copying a photograph but also from creating an imitation of a photograph by copying the style, angle, lighting, and any other artistic or expressive notions the photographer might have used in his photograph. Courts also apply this to derivative works based on photographs, such as statutes or paintings imitating the photograph.
According to copyright lawyer Steven Ayr, “courts have set up a system to describe the various ways a photograph can be original and therefore the various ways in which it’s protected by copyright.” Ayr states that there are three ways in which a photograph is original and therefore protected under copyright law: timing, rendition, and creation of the subject. Timing, he says, is the most basic and least original aspect of a photograph, and provides the least amount of protection for a photograph. Timing basically means that the photographer was in the right place at the right time; the photographer took the photo at the exact perfect time for his photo to be a beautiful piece of art. But what Ayr seems to miss in this analysis of “timing” is its relationship to the element of exposure selected by the photographer. While a lot has to do with being at the right place at the right time, an equal emphasis might be placed on the photographer’s ability and knowledge in selecting the exact right exposure to capture the moment he or she is attempting to capture. By grouping the element of exposure into the second factor, addressed below, Ayrs overlooks the undefinable element of synchronicity that makes this element more critical.
The second element, according to Ayrs, is “rendition,” which has to do with the aesthetic elements the photographer chooses to use in the photograph, such as special effects, the angle, lighting, and the type of camera or lens used to shoot the photo. In many court cases, infringement is determined by the amount of these types of choices made by the plaintiff, which are compared to the accused work to determine how closely related, or similar the copy is to the original photograph.
The third element Ayrs identifies is something he calls “creation of the subject,” by which he essentially means that the photo is original in the way that the creator sets the scene for the photograph. According to Ayrs, the subject selected in creation may achieve sufficient originality to allow the photographer to obtain protection over the subject itself, whereas timing only allows the protection of the reproduction of the subject, and rendition only protects the view of the subject.
These three concepts of originality in a photograph proposed by Ayr interact to form the basis of protection. For example, he identifies two instances in which the originality of a work can be determined quite easily and result in infringement of another photographers work: the first is when someone duplicates the original photograph and the second is when the photographer’s creative choices, such as angle, lighting, positioning, are imitated. In terms of copyright law, in other words, when the copy incorporates protected elements of the original. The first can be illustrated by the court case of Burrow-Giles Lithographic Co. v. Sarony. The second instance can be found in numerous court cases, but one that is particularly applicable is the case of Mannion v. Coors Brewing Co.
In Mannion, a freelance photographer sued Coors for copying his photograph of Kevin Garnett in SLAM magazine. Coors created, “a manipulated version of the Garnett photograph and superimposed on it the words ‘Iced Out’ (“ice” is slang for diamonds) and a picture of a can of Coors Light beer…” The Mannion court used the three concepts identified by Ayrs in finding the Garnett photograph to be original. The Court used the concept of rendition when it declared that “originality . . . does not depend on creation of the scene or object to be photographed…