Photography and Copyright Law: The Idea – Expression Dichotomy

This post has been written by our intern, Raji Gururaj.

Copyright Law has an intrinsic connection with the art of photography. The owner of the copyright in a photograph enjoys the exclusive right to reproduce, communicate and exhibit his or her photographs. As a general rule, copyright belongs to the person who shoots the image, once it has been reduced to tangible form that may include print, film or a digital format.

One of the basic rules of copyright law is that it provides protection to the expression of an idea, and not the idea itself. This rule plays out in a very interesting way in the field of photography.

What is Idea and Expression in Copyright Law?

The essential difference between the concepts of idea and expression form the foundation of copyright law. An idea has been described as a thought, a mental image, or a conception of a theory. In layman terms, if an idea can be described as a subject-specific formulation of thought, then its expression would constitute implementing it.

The same idea could have several forms of expression, and this is where disputes with respect to copyright claims arise. Difficulties arise when the lines of distinction between ideas and their expression are blurred. The distinction between idea and expression is particularly hard to perceive, because there is no clear definition for what constitutes an idea or its expression. This is also why courts have a hard time ruling on cases of copyright infringement. In some cases, like say literary works, courts have had an easier time identifying the idea-expression distinction. The plot of a fictional work may be considered the idea and they way it has been written, the expression. However, with works of visual art such as photography and sculpture, how does one identify and distinguish an idea from its expression?

(You can read more about the idea – expression dichotomy here).

This image is in the public domain

This image is in the public domain

Are photographic works protected under copyright?

Although photographic works are protectable by copyright, it is important to remember that only those elements contained in the photograph that express the original idea are protectable. This means that elements derived from the public domain cannot be protected. Other requirements to establish a copyright claim include the independent effort of the creator of the artistic work, and the element of original creativity brought in by him or her. (You can find out more about copyright here).

The nature and extent of a photograph’s protection differs depending on what makes that photograph original. Originality in photographs can be found in terms of their rendition (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 their timing, and in the portrayal of the subject matter.  In general, it is not how a photograph is shot that is copyrightable, but the resulting original content. This can also mean that sometimes it is not the individual elements themselves, but their original combination that gives rise to copyrightable expression. For instance, several individual elements from a given photograph like say, the wardrobe of the model, a cloudy sky as a background, etc., may be available in the public domain already and while these are not protectable as individual elements, their aesthetic combination is protected by copyright.

Originality of expression also stems from the photographer directing his subjects and orchestrating the scene. A picture of a scene as it exists in fact, would not be protected against copyright infringement. Several photographers may click pictures of the Taj, but no copyright infringement can be claimed.

However, the courts do not, and should not make value judgements in determining whether or not a photograph or other artistic work would be protected by copyright. How aesthetic or how beautiful a work is, does not have a bearing upon the protection offered to it by law.

How Ideas and Expressions play out in Photography:

This image is in the Public Domain

This image is in the Public Domain

Distinguishing idea from expression in the context of photography can be a little hard owing to the fact that a photographic work focuses on the portrayal of an existing subject from a particular perspective. However this has not stopped courts from applying these principles and ruling over disputes where others have directly copied a photographic work or have created an imitation of a photographic work in terms of replicating 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.

If, for example, a picture was directed very similar to the Abbey Road cover of the Beatles, where the singers are walking in a line, on a zebra crossing, dressed in contrasting formals, this might be an infringement of that copyright. Say, the suspected photograph is merely one of four men crossing a road on a zebra crossing, this would be the expression of a very common idea, not specifically the idea behind Abbey Road. However, if the photographer dressed his subjects in a similar wardrobe, shot the picture at the same angle, then this could amount to an infringement of the copyright on Abbey Road.

In the American case of Dyer v. Napier [2006 WL 2730747], a wildlife photographer clicked a picture of a mountain lion with her baby in her mouth at the edge of a cliff. Napier, a sculptor, then made a very similar sculpture of a mountain lion with a cub in her mouth. He had seen the photographs earlier, so he did have prior access to it. Therefore, the issue to be decided was whether the sculpture was substantially similar in both idea and expression. The Court held that the image of a mother mountain lion perched on a rock with a cub in her mouth is an idea “first expressed by nature.” As a result, there was no infringement of copyright.

In another American case, Harney v. Sony Pictures [704 F.3d 173 (2013)] a photograph of a man carrying a little girl on his shoulders was copied by Sony Pictures, while making a documentary. The Court held that the piggyback pose in the original photograph was not protectable because the photographer did not direct his subjects, and that the pose is too common to be protected.

The selfie that Ellen clicked at the Oscars has become immensely popular, and people across the globe click similar selfies now, where a group of people fill up the frame of the photograph. This does not amount to copyright infringement either, because the very idea of a selfie has been around long enough to be in the public domain, and is arguably an extremely common mode of photography.

Copyright in photography, hence, works at several different levels, has a gamut of gray areas, and infringement of copyright in photography is difficult to perceive clearly and definitively. What is certain, however, is that the substantial, expressive elements of a photograph may not be copied, whereas the idea can be taken and expressed in other ways.

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