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The Photographer's Copyright Harvard Journal of Law & Technology Volume 25, Number 2 Spring 2012 THE PHOTOGRAPHER’S COPYRIGHT — PHOTOGRAPH AS ART, PHOTOGRAPH AS DATABASE Justin Hughes* TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 340 II. THE CREATIVE TRUTH OF PHOTOGRAPHY ................................... 343 A. The Photograph as Fact(s) ....................................................... 345 B. The Photograph as Art ............................................................. 351 III. ORIGINALITY AND TWO UNDERSTANDINGS OF HOW IT HAPPENS ........................................................................................ 368 IV. UNCOPYRIGHTED PHOTOGRAPHS AND UNPROTECTED ELEMENTS ..................................................................................... 373 A. Completely Unprotected Photographs ..................................... 374 B. Satellite Photographs or Something More? ............................. 382 C. Limited Originality-Based Protection for Photographs .......... 387 V. WHY ORIGINALITY GETS STRETCHED ......................................... 392 A. The Need for Incentives ............................................................ 393 B. The Concern for Fairness ......................................................... 400 C. The Sense of Beauty ................................................................. 400 VI. UNDERSTANDING ORIGINALITY IN PHOTOGRAPHY .................... 401 A. Originality in Outcomes, Not Process ...................................... 408 B. Originality Hunting .................................................................. 410 C. Complicating Factors ............................................................... 416 1. Capturing a Reality That Is Someone Else’s Design or Intention .......................................................................... 416 2. Capturing a Reality That Would Otherwise Be Lost to Us Versus Capturing a Reality That Continues to Exist ................................................................................. 416 * Professor of Law, Cardozo School of Law, New York. My thanks to Irina Eidsvold Tøien for assistance on research that contributed to this project as well as to Michelle Bogre, David Nimmer, and Samson Vermont for helpful comments. Thanks to Alex Guzman, Michael Scarpati, and Brandon Sherman for research assistance. My thanks also to the law faculty at the University of Pennsylvania and the University of Michigan for invitations to present this project in workshops. The remaining errors are the exclusive intellectual proper- ty of the author. Copyright © 2011 by the author. Permission is hereby granted for non- commercial reproduction of this Article in whole or in part for educational or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in the copies. 340 Harvard Journal of Law & Technology [Vol. 25 3. Capturing a Reality That Is Natural or Random Through Your Own Intentional Program ........................ 417 VII. THE UBIQUITOUSLY PHOTOGRAPHED WORLD .......................... 419 VIII. CONCLUSION ............................................................................ 424 IX. APPENDIX: COLOR FIGURES ....................................................... 427 I. INTRODUCTION “ORIGINALITY IN PHOTOGRAPHY AS DISTINCT FROM ORIGINALITY IN PAINTING LIES IN THE ESSENTIALLY OBJECTIVE CHARACTER OF PHOTOGRAPHY.” — ANDRÉ BAZIN 1 “IT IS THE RESULT OF ART, GUIDED BY CERTAIN PRINCIPLES OF SCIENCE.” — UDDERZOOK V. COMMONWEALTH 2 It is a truism that developments in copyright law are largely driv- en by technological change. In our own times, the digital, networked environment has provided direct challenges to many, perhaps most, of copyright’s core ideas: a copy, reproduction, distribution, public per- formance, commercial use, transformative use, fair use, and various forms of secondary liability. Yet one of copyright’s core concepts that has so far escaped challenge is the bedrock idea of “originality” or “creativity.”3 There are those who tell us breathlessly that the Internet has changed creativity, making it more collaborative and more deriva- tive, but they can point to few artistic or creative practices that were not already happening on a smaller, less sophisticated scale in the ana- log world. What you and I can do with Photoshop was already being done — quite well — by the Soviet commissar’s touch-up artists.4 Music sampling and video mashups were old hat by the time 1. ANDRÉ BAZIN, The Ontology of the Photographic Image, in 1 WHAT IS CINEMA? 9, 13 (Hugh Grey trans., University of California Press 2005). 2. 76 Pa. 340, 352 (1874). 3. Strictly speaking, under current U.S. doctrine, “[o]riginality is a constitutional re- quirement” for copyright protection and “originality requires independent creation plus a modicum of creativity.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991). I use the two interchangeably. Assuming that “independent creation” will not occur without “creativity,” establishing creativity establishes originality. See Justin Hughes, The Personality Interest of Artists and Inventors in Intellectual Property, 16 CARDOZO ARTS & ENT. L.J. 81, 99–106 (1998) [hereinafter Hughes, Personality Interest] (exploring the meld- ing of originality and creativity). Internationally, the originality standard of copyright is generally captured by the notion of intellectual creations. See Daniel J. Gervais, Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law, 49 J. COPYRIGHT SOC’Y U.S.A. 949, 971–72 (2002); Lior Zemer, The Copyright Moment, 43 SAN DIEGO L. REV. 247, 287 n.161 (2006) (citing European Community directives that define originality as “the author’s own intellectual creation”). 4. See generally DAVID KING, THE COMMISSAR VANISHES (1997). No. 2] The Photographer’s Copyright 341 ARPANET was born.5 As for massively collaborative works, how do you think Rodin made those enormous sculptures, Renaissance artists those grand tableaus, or Andy Warhol some 100,000 pieces of art at his Factory?6 But the challenge to copyright’s concepts of originality and crea- tivity is coming — there is no other way to sensibly read the tea leaves of new digital tools and artificial intelligence research. With such challenges on the horizon, it is worthwhile to meditate on copy- right’s adaptation to an earlier disruptive technology: photography. Photography was the technological development that posed the most serious challenge to copyright’s theoretical structure in the nineteenth century, and it did this because it challenged our understanding of creativity. It took copyright law a while to accept photography, and the rate and degree of integration of photographs into the copyright system varied from country to country. You can see this vividly in the gradual evolution of the international copyright norms for photography. Pho- tography was first recognized in the original 1886 Berne Convention, but only in the Final Protocol’s acknowledgment that countries that recognized the “artistic” character of photographs could “admit them to the benefits of the Convention”;7 the 1896 revision of the Protocol eliminated this double reference to “artistic works” and simply acknowledged that it was a matter of domestic legislation to deter- mine whether and how photographs would be protected as literary and artistic works.8 The 1908 revision finally mandated that all Berne sig- natories provide some protection for photographic works, but did not mandate a term of protection9 and, tellingly, kept photography in a distinct category from “literary and artistic works.”10 It was not until 5. See Dan Hunter, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 CAL. L. REV. 439, 476 n.236 (2003) (“The Internet was the network of networks that arose from ARPANet and a series of other networks, circa 1969.”). 6. Georgina Adams, Thorny Issues, FIN. TIMES, November 26, 2011, at 5 (describing how Warhol employed “art workers” at the Factory and “had varying degrees of ‘hands-on’ input” with artworks). 7. Final Protocol, Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886 (“[I]t is agreed that those countries of the Union where the character of artistic works is not refused to photographs engage to admit them to the benefits of the Convention concluded today . .”). 8. Amendments to the International Copyright Convention of September 9, 1886, agreed to at Paris, May 4, 1896 (modifying the Final Protocol to provide “[p]hotographic works, and those obtained by similar processes, are admitted to the benefit of the provision of these acts, in so far as domestic legislation allows this to be done”). 9. Art. 7, Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Berlin on Nov. 13, 1908 (“For photographic works and works obtained by a process analogous to photography . the term of protection is regulated by the law of the country where protection is claimed . .”). 10. Article 2 of the 1908 Berne Convention inaugurated the laundry list of “literary and artistic works” that fall under the purview of the treaty, but the 1908 version did not include photographs, which were segregated into Article 3. Art. 3, Berne Convention for the Protec- 342 Harvard Journal of Law & Technology [Vol. 25 the 1948 revision that
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