THE BASIS FOR ORIGINALITY IN PHOTOGRAPHS

• Citation: (2020) 32 SAcLJ 1101
• Published date: 01 December 2020
• Date: 01 December 2020
• Author: WOO Jian Ming, Shaun1 LLB (Hons) (National University of Singapore).

Although photographs are artistic works, locating originality in this category of works has proved problematic for copyright systems due to the verisimilitude of photographs and the mechanical nature of photography. Divergent approaches have thus been adopted in the US and under UK common law. In 2017, the Ninth Circuit likened photographs to factual compilations, holding that it was the selection and arrangement of the individual elements of a photograph which, if sufficiently original, were protected by copyright. This article examines the different approaches adopted in the UK and US and their respective doctrinal underpinnings, and considers the way ahead for Singapore law.

I. Introduction

1 Photographs are artistic works which may be protected by copyright. This reflects the legal position in Singapore2 and, indeed, most states having a copyright regime, given the inclusion of photographs within the definition of “artistic works” in the Berne Convention for the Protection of Literary and Artistic Works3 (“Berne Convention”). But while their status as subject matter in which copyright may subsist cannot be seriously disputed today, photographs were initially regarded by copyright systems with suspicion,4 and the international community was slow to recognise them as artistic works. The 1886 Berne Convention initially went no further than to permit conferring copyright protection upon photographs.5 Mandatory protection of photographs only came decades later,6 as did recognition of photographs as “literary and

artistic works”.7 Moreover, even when the Berne Convention finally imposed a minimum term of protection for photographs in 1967, this was considerably shorter than the minimum protection terms applying to other works.8 Only with the 1996 World Intellectual Property Organization (“WIPO”) Copyright Treaty9 was the protection term for photographs finally aligned with other types of artistic works.10

2 Even today, however, courts and copyright systems struggle to apply originality principles to photographs. This is chiefly due to the unique features of photographic technology which distinguish photographs from other types of artistic works – namely, the verisimilitude of photographs and the mechanical nature of the technology.11 Because of these features, the quality and degree of a photographer's involvement in the production of a photograph may vary greatly: photographs range from creatively styled portraits to mechanical reproductions involving little or no choices by the photographer, or even unintentionally captured

shots, and a photographer's input in producing each of these accordingly differs. Nevertheless – and despite the wide spectrum – it has been persuasively argued that all photographs, which are inevitably copies of the subject matter before the camera, may from one perspective be viewed as databases.12 Understanding photographs as fact-based works can provide us with a useful tool to locate photographic originality, and therefore identify when a photograph may receive no protection at all, or, for photographs which are protected, where such originality lies.13

3 The applicable principles for determining when (or which elements of) a photograph is protected by copyright law in Singapore remain to be expounded by the local courts. Looking to US and UK common law,14 divergent approaches have been adopted with regard to locating photographic originality. In the US, the Court of Appeal of the Ninth Circuit in Jacobus Rentmeester v Nike Inc15 (“Rentmeester”) accepted academic argument likening photographs to factual compilations, holding that it was not the individual elements of a photograph, but the selection and arrangement of those elements – if sufficiently original – that were protected by copyright. In contrast, although the issue has yet to be fully worked out by the UK courts, traditional UK common law appears to adopt a broader scope of originality. This article attempts to demonstrate that the variance in approaches is attributable mainly to the different underlying justifications of copyright protection in the US and UK. While US courts view copyright as an incentive to add to the pool of creative works available for the benefit of society – manifested in the creativity doctrine of originality16 – UK courts applying the traditional common law have tended to view copyright as a reward for investment

and protection against unfair competition,17 pursuant to an originality doctrine which conferred copyright protection even on works produced merely by the sweat of one's brow.18 Additionally, UK courts have also indicated a willingness to stretch the concept of originality in the context of photographs beyond sweat-based justifications.

4 The different approaches have resulted in correspondingly different scopes of protection. This article explores the legal positions in these two jurisdictions, and attempts to convince the reader that once accepted that photographs are fact-based works, the approach in Rentmeester should be followed by local courts. Part II19 explains that the verisimilitude of photographs and the mechanical nature of photography, which enable divorcing the production of a photograph from the input of the photographer, have resulted in the law struggling to locate photographic originality. Further, it describes the argument, drawing on the acceptance of photographs as evidence due to their verisimilitude, that photographs have a fact-bearing capacity and may – besides constituting art – be understood as databases. Part III20 discusses the general requirement of originality under US and UK common law, explaining the different doctrinal underpinnings of copyright in both jurisdictions. It also touches briefly on the application of originality principles in the context of factual compilations – a category of works relevant to photographs due to their similarities as fact-based works. Part IV21 then delves into the jurisprudence in the US and UK on photographic originality and explores how different approaches have been adopted in the two jurisdictions, stemming largely from the divergent justifications for copyright protection. Moreover, given the underdeveloped state of the law on the subject in the UK, this part also engages with some challenging issues posed by the wide scope of photographic originality suggested by UK courts, which tends to stretch the concept of originality. Part V22 then considers the implications of the differing originality doctrines on the protection of a particular category of photographs – photographic replicas of existing works – by looking at

the relevant principles concerning originality in derivative works in both jurisdictions. Finally, Part VI23 turns to the local context and explains that the creativity doctrine espoused in Rentmeester should be preferred by the Singapore courts when considering the issue of photographic originality.

II. Peculiarities of photography and tension with originality

A. Verisimilitude of photographs and mechanical nature of photography

5 The difficulties associated with locating originality in photographs stem from the unique nature of the technology, which distinguishes photographs from other types of artistic works. Because the photographic process involves the production of an image through the recording of light (or other radiation) on a certain medium,24 photographs are essentially copies of the subject matter before the camera.25 This verisimilitude of photographs was perhaps regarded as its greatest merit during the early days of the technology when, for the first time, it was possible to record objective and accurate portrayals of the world.26 Indeed, as Christine Haight Farley observes, judicial cognisance was quickly taken in the US of the camera's ability to “produce a direct transcription of the scene before it”:27

The perceived objectivity of the camera made it particularly well-suited for evidence in legal disputes and the first mentions of photography in court opinions are references to pieces of evidence. Even though the evidentiary doctrine eventually stabilised and treated photographs as visual aids of testifying witnesses, initially there was a tendency to allow the photograph to speak for itself, as photographs were seen as inscrutable conveyers of truth.

6 A second characteristic of photographs that distinguished it from other artistic works was the mechanical nature of the technology. There was an initial tendency to stress the objectivity of photography by emphasising the role of the machine and denying the role of the human operator.28 Indeed:29

… the initial, perhaps dominant view was that the photographer was not a creator, but the operator of a machine: it was the machine's interaction with nature that was the source of the final photographic image.

As Burton Ong observes, as recently as the late 1970s, “many English copyright lawyers regarded photography as an industrial process rather than an artistic one”.30

7 But although the photographer's role may no longer be understated today, the verisimilitude and mechanical nature of photography continues to pose difficulties when considering the originality of this category of works.31 While the photographic process can be simultaneously mechanical and creative, “the balance between these two elements may vary enormously in any given case, yet the product is in each case a photograph”.32 Consider two broad categories of photographs in which a photographer's input may vary: In the first category, a photographer may stage the tableau (that is, physically arrange the subject matter, such as of a portrait) before taking a photograph. In directing the scene, the photographer exerts his influence on the resulting image, for the scene does not exist independently but is created by the photographer for the purposes of the photograph.33 In the second category, the photographer sets out to take a photograph...