The Most Difficult Issues in The Protection of Photographic Works: From the Past to The Present.TABLE OF CONTENTS 1. Introduction 2. The controversial issue whether photographic works would merit less protection than other works or not. Do photographic works involve the same creativity as other artistic works? a) What is a photograph? A brief summary about the particular nature of photographs. b) Historical development of the protection of the photographic works c) The protection today. d) The rights of photographers. 3. The relationship between the unique nature of photographs and the concept of creativity or originality. a) Is there a standard of originality in the International Treaties? b) Application of the originality criteria in domestic laws. c) Harmonization of the concept of originality within the European Union. 4. Some common principles developed by Courts as regards infringement of photographs and originality. a) The photograph has to be the author’s intellectual creation. b) The author must be able to express his creative abilities in the production of the work by making free and creative choices. c) The quality of what has been appropriated is more significant than the quantity. A photograph cannot be used to monopolise poses and common concepts are not protectable by copyright. Copyright subsists in a manipulated work. d) The important role that the evidence plays in order to show the free and creative choices made by practitioners. 5. Infringement of author’s moral rights in photographic works. a) The right of paternity. Work-made-for-hire doctrine b) The right of integrity c) The rights in the image of the people that poses in a photograph. 6. Analysis of the current problems that photographers are facing regarding the protection of their works: copyright of photographic works on the Internet. a) The adaptation of the traditional rules of the protection of photographs to the digital environment. b) The protection of images on the social media. The policies on Facebook, Instagram and Flickr. How do you can legally get an image? c) Specific problems created by search engines (Thumbnails) regarding the reproduction and moral rights of the author. 7. Preliminary protection of works rather than claiming infringement in Courts: Rights-management information (RMI). 8. Conclusion and analysis. Bibliography: Books Articles Electronic sources Cases CJEU Statutes  copyright in photographs is a “tricky area of law”, and perhaps the present situation has its origin in the background of its protection, especially in the unclear concept of creativity, that we are going to discuss below in depth, given its importance to understand the recent decisions of Courts when analysing if there is infringement or not in this type of works. In a type of work that a huge part of its protection relies on the level of creativity of the author, this essay discusses what are the common infringements founded nowadays by Courts with regard to the unauthorized use of photographs and the difficulties that practitioners face at the time of proving originality before a Court. It is easy to find originality in a literary, dramatic or musical work, however, in one in which its essential component is just mechanical is not quite straightforward. It is well-known, that there are various types of photographs and its protection varies according to the subject matter. There are advertisement photographs just for the purpose of selling products, photojournalistic photographs, which are included in newspapers or magazines. The first chapter will focus on the analysis of the background of the protection of photographic works, outlining the reasons of why the duration of its protection was lesser than other type of works, in which the different interpretations of the concept of originality by countries had an important role to play. Secondly, this essay addresses the main rights of the author of photographic works, with special focus on the reproduction and communication to the public rights and on the moral rights of the author, which are of particular importance in a kind of work that nowadays is easily manipulated by software such as Photoshop or programs that provide a system to strip the essential right of being referred as the author of the work. In third place, this paper discusses the current problems that photographers are facing regarding the protection of their works in the new digital environment and how the protection has evolved to end up placing in the hands of the author the most effective weapon against infringement online, through the use of rights-management information. Additionally, we will study the policies of the most famous social media platforms, where both professional and amateur photographers “post” their works today and what is the standard applied to test originality in these sites. The final section proposes an alternative test to determine if a photograph should be considered a work of art, and makes recommendations as to how the protection could be improved in relation to the use of digital images in the Internet and what are the best technological measures that should be taken these days.
2. The controversial issue whether photographic works would merit less protection than other works or not. Do photographic works involve the same creativity as other artistic works?. The latter reflects just the technical element. However, from the view of some professional photographers, photographic works are undoubtedly art. Thus, some of the most famous phrases said by some photographers are “Great photographs are like visual poetry”. Others say that “A portrait is not made in the camera but on either side of it” (Edward Steichen); Some say that “The picture that you took with your camera is the imagination you want to create with reality” (Scott Lorenzo); “Photography has nothing to do with cameras” (Lucas Gentry); “I don’t trust words. I trust pictures (Gilles Peress) . Therefore, photographic works have two components, an intrinsic and unavoidable mechanical process but also a creative touch of the author, which is the main factor that amounts to consider photographs as artistic works and determined its inclusion in the list of the Berne Convention protection. Furthermore, it should be noted that even in the description of the birth of snapshot photography, they stated in 1888, when the name “Kodak” was born and the Kodak camera was placed on the market, the slogan “You press the button-we do the rest”. Therefore, from the very first beginning the mechanical aspect has been always present in the process of taking a photograph. However, do photographs involve more than pressing a button? This mechanical process is precisely the reason behind the vast majority of differences between civil and common countries regarding the protection that should be granted to photographs. The main problematic issue is that a photograph is considered a “copy of something itself” and “it supposed to reflect no more than reality” . . In the early years of the Berne Convention, national law approaches were confronted about the specific inclusion of photographic works in the list of the protected works, as well as the duration of its protection, which was often shorter than the general one. It was not until 1951, and after six conferences –see in detail below- that the Berne Convention first specifically includes photographs following the Brussels Revision. This was justified by the fact that many countries considered photographic works as a less valuable category, because the skill required to produce the final picture only involve the simple operation of pushing a button, which did not seem to show as much creativity as painting a picture. Germany, which was one of the most influential countries in the Conferences, always felt that photographs did not deserve protection as artistic works. In fact, for photography to be accepted as art took a long time in Germany. The German system of protection consisted in the differentiation between better photographs and the worse ones, which for Germans deserve lesser protection. Thus, it is not strange that the German Legislator did not incorporate the criterion developed today by the CJEU, that is “the author’s own intellectual creation”, reflecting his or her “personality” or “personal touch”. This requisite already seems to correspond with the usual German approach of the creativity needed to constitute a work. The German Copyright Act 1965 offers a related right protection to simple photographs lacking creativity, for example, routine snapshots, with the consequently differentiation in the term of protection, which was of 70 years after the author’s death in the case of photographic works and 50 years after publication for simple snapshots. Having said that, until the inclusion of photographic works in the art. 2 of the Berne Convention, there were many conferences. Firstly, in the 1885 Conference, the only category of photographic works which were protected were authorized photographs of a “protected work of art”, for example a photograph of a painting, drawing or sculpture. In the Paris Conference (1896), the principal advance was the introduction of the principle of national treatment for the protection of photographs. After that, in the Berlin Conference (1908), was accorded in the article 3 that the Convention should apply to photographic works and works obtained by analogous process, regardless of whether the law of contracting country protected such works as artistic works or otherwise. After an International Congress on Photographic Law (1935), in the Brussels Conference (1948), the article 3 was deleted, and photographic works were included in the list of article 2(1). As a result, photographic works enjoyed full protection as artistic works under the Convention, subject to the minimum term of protection of 25 years contained in the Art. 7(4) of the Berne Convention, which states: “It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works…in so far as they are protected as artistic works; however this term shall last at least until the end of a period of twenty-five years from the making of such a work” It is well-known that the Berne Convention works under the principle of national treatment. This can cause some difficulties at international level because the Convention just protects “artistic” photographs but this is interpreted differently in each country. As a result, an author may find that his photograph is protected nationally, but not abroad. , making a life plus 50 years the minimum term for WCT members. Furthermore, articles 1 and 6 of the Term Directive has imposed a uniform term of life of the author plus seventy years after his death on all photographs meeting the minimum originality standards.  (Art. 11 bis), all of them recognised by the Berne Convention. In addition, photographers enjoy the protection of technological measures and rights managements information (arts. 11 and 12 of WIPO Copyright Treaty, and arts. 18 and 19 of WIPO Performances and Phonogram Treaty). Moreover, the article 5 of the InfoSoc Directive (2001/29/EC) establishes the exceptions and limitations to the reproduction right of the author, and the definition of transient or incidental reproduction which is essential as a part of the technological process. Finally, photographic works also enjoy the moral rights of the Article 6bis of Berne Convention.
3. The relationship between the unique nature of photographs and the concept of creativity or originality.Defining originality in photographs is of crucial importance as it is the level of originality that will determine whether a photograph is protected by copyright or not. However, provided its unique nature, this mission is not straightforward. Photographs can capture reality and not always readily reveal the creativity that a photographer infuses into his work. The history of the inclusion of photographic works in the Berne Convention has an important role to play in the progress made to reach a desirable harmonisation in the interpretation of this requirement at international level, and this is probably one of the main areas of conflict in the protection of photographic works internationally. Indeed, one of the main problems internationally regarding photographs is the related right protection granted by some countries to non-original works. Nimmer & Geller stated that photographs lacking obvious originality or creativity raise special problems because copyright statutes do not necessarily protect all photographs as works with full copyright. Some of these just protect them as a related right. . Nevertheless, what is originality? There is not statutory definition for originality and which level it has to reach to amount to copyright protection. Therefore, remains a matter for national legislatures and Courts to establish this. The only standard approach in the international treaties, which reveals certain level of harmonisation, is “the test of intellectual creation”. . Many countries, particularly the civil law ones, have implemented the aforementioned test of intellectual creation, where is highlighted the personal input of the author. There are other countries that apply a “work, labour and skill test”, particularly common law countries (UK which traditionally has been regarded as requiring a low level of originality, but is still designing its standards, see this in Newspaper Licensing Agency v Meltwater Holding ). It should be noted that the US used to fall within this category, however after Feist Publications v Rural Telephone Service Co Inc , when the “sweat of the brow” doctrine was rejected, it was made clear that rather than labour alone there must be some creativity involved, which is important towards the harmonisation on standards of originality, because it represents a move by a common law country towards the civil law approach. . There are three directives that refer to “originality”: (i) the Term Directive, (ii) the Database Directive and the Computer Program Directive, and (iii) the Information Society Directive, which refers to intellectual creation and creativity. From the Term Directive it should be considered, and indeed it has have been being considered by Courts at the time of analysing alleged infringement, firstly, the recital 17 of its preamble. In addition, the article 1, which harmonises the term of protection and article 6, which provides the criteria that shall be applied to determine the eligibility for protection of a photograph, which is “Photographs which are original in the sense that they are the author’s own intellectual”. This article leaves for Member States the provision for the protection of other photographs.
4. Some common principles developed by Courts as regards infringement of photographs and originality.The analysis of the infringement of photographic works is not easy. A photograph is itself a copy of the image it represents, therefore some elements of a photograph may not be “original”. If someone has copied just the non-original features, this probably will not constitute an infringement. Copyright is infringed by copying the work or a substantial part of it in any material form, and it is necessary to show that there is sufficient objective similarity between the infringement work and the copyright work, and the copyright work is the source from which the infringing work is derived. These are the different principles settled by Courts in some famous cases:
b) The author must be able to express his creative abilities in the production of the work by making free and creative choices.One of the first cases in which this was analysed was in the US Supreme Court decision of Nicolas Sarony (1884), which dealt with a photograph of Oscar Wilde. This decision pointed out that photographs are no more and no less copyrightable than a painting or a poem. The Court rejecting to regard a photograph as a mere mechanical process, looked at the particular attributes of the photograph in question such as the selection and arrangement of the costume, the light, the shade. Another important case is Painer,in which the CJEU stated that in a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production and can stamp the work created with his personal touch. For example, in the preparation phase, choosing the background, the subject’s pose and the lighting; when taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created; and finally, when selecting the snapshot, may choose techniques or use a computer software. Consequently, in a portrait photograph, the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent and can be protected by copyright if such photograph is an intellectual creation of the author (para 90 to 94). In addition, the protection of a portrait photograph cannot be weaker or inferior to that enjoyed by other works (para 95 to 99).
c) The quality of what has been appropriated is more significant than the quantity. A photograph cannot be used to monopolise poses and common concepts are not protectable by copyright. Copyright subsists in a manipulated work.It could be infringement in the recreation of a substantial part of an original photograph in which the second photograph has recreated the original elements of the first one. If all that is taken is the idea of the first photograph then there will be no infringement. A photograph cannot be used to monopolise poses. For example, common concepts are not protectable by copyright (e.g the photograph of a businessman contemplating a building in New York). To understand better this, it is important the case Bauman v Fussell , in which the defendant had reproduced in a painting the scene depicted in the plaintiff’s photograph of two cocks fighting, although using different colours. The plaintiff argued that, being the design a substantial part of an artistic work, reproducing the position of the birds was amounted to taking a substantial part from his photograph. Judge Romer LJ disagreed and held that there was not an infringing copy, and the defendant had produced a new work of art on his own using the plaintiff’s work just as an inspiration. The conclusions reached by the Judge in the well-known Red Bus Caseare important in the concept of originality because this decision had a huge impact not only on the development of the UK copyright law, but also at international level. The standard of originality in the UK used to be regarded below the media, however after this decision, which applied both Infopaq and Painer standards of originality, we can conclude that this is not the situation anymore, and decisions such as Antiquesportfolio.com Plc v Rodney Fitch & Co Ltd, in which copyright was held to subsist in simple photographs of three dimensional objects is not a valid precedent. Although this decision creates some insecurities in the complicated concept of originality, at the same time confirmed that (i) the composition of a photograph may also constitute a source of originality, (ii) protection can be granted to manipulated photographs by computer programmes as an another category of originality, and that (iii) not every common element of a photograph can be protected, given that although a man may get a copyright by taking a photograph of some well-known object, he does not get a monopoly in representing it as such. and (iv) what is truly important is the fact that elements that are reproduced include the key combination of the visual contrast features alongside the basic composition of the scene itself.
d) The important role that the evidence plays in order to show the free and creative choices made by practitioners.The recent and famous French case Societe Bowstir Ltd v EgoTrade SARL [12 June 2017], in which Mankowitz’s famous portrait of world-known music legend Jimi Hendrix was distorted for commercial advertising purposes, stands out how originality should be proven in a trial. Proving originality is not something to take lightly. The claimant must be sure that the evidence submitted demonstrate his or her free and creative choices and that his or her contribution to the work was considerable. The mistake made by the claimant in this case was to focus on proving trivial elements in the first instance, while on appeal payed more attention to other more important details such as the preparation of the shooting, its organisation with the rock star, the type of the camera and lens used for the effect, the lighting, background, framing and angle. Taking all of this into account, along with the reputation of the author, the Court of Appeal of Paris, ruled in favour of the claimant. . Moral rights are provided in Art. 6bis of Berne Convention, which states that: (1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. […]” It should be noted that the reasons of why the US did not join to the Berne Convention earlier was its position regarding moral rights. For a long time this country refused to incorporate moral rights to its system. After, the WIPO Copyright Treaty of 1996 obliges all contracting parties to comply with the whole of the Berne Convention including moral rights, in 1990 the United States adopted the Visual Artists Rights Act, which, only extend the rights to photographs that are made for exhibition purposes and exists as a single signed copy or as limited editions of 200 copies or less signed and numbered by the author. . This includes issuing copies or making the work available to the public. The identification must be clear and reasonably prominent. . In some countries such as the UK there is no right of paternity in respect of photographs taken by employed photo-journalists or other photographs taken by employees in the course of their employment. By contrast, the German Copyright law does not recognize this doctrine, the initial owner of copyright in a work is always its creator.
- The reduction in size of the photograph. An illustrative case might be Delves-Broughton v House of Harlot Ltd , in which the defendant published on his website, a photograph of a model in a forest wearing a dress provided by Hose of Harlot, after making some changes to the size of the photograph and removing the forest. On the one hand, the Court found that the absent of a valid licence amount to infringement awarding £675 in damages. On the other hand, the Judge also granted the infringement of moral rights on the basis of derogatory treatment of the work, awarding additional £50 for this.
- A photograph that have been cropped or touched up by a newspaper and published as the work of a particular photographer.
- The presentation of digital image in a reduce “thumbnail” format.
- Placing a “watermark” of a company’s logo over the whole image.
- Stripping metadata. “Metadata” is an inherent part of an electronic document, that identifies the author, the size of the image, the date when the picture was taken. Its removal requires an affirmative act by the author of the work. Removing this information by using a software o apps may constitute an infringement of the author’s moral rights.
6. Analysis of the current problems that photographers are facing regarding the protection of their works: copyright of photographic works on the Internet.
a) The adaptation of the traditional rules of the protection of photographs to the digital environment.How is perceived the creativity of the author in the digital era, when even the configuration of dishes is a copyrightable subject matter as culinary art, is it still true that a picture is worth a thousand words, when the digital manipulation of photographs has become a generalized practice between professional photographers and amateurs. How can we adjust all the rules and principles mentioned in the previous chapters to this new situation, in which anyone without especial efforts can alter an image easily and quickly, by using either in-built tools or external apps, which permit the edition of an image, such as cropping it, adjusting the lighting and tone or adding some filters. All of these changes can be done even after the photograph is taken. A very little expertise is required to operate imaging software at a simple level. So, can anyone be a photographer nowadays? It is not clear what amount of creativity is required through that choices to be protectable by copyright, but what is certain is that a manipulated image enjoys copyright protection If a photograph is the result of the author's own intellectual creation, what is decisive is that the personality of the author can be reflected in the arrangements selected by him. Such freedom of creation does certainly exist not only for professional photographers with regard to works claiming a high artistic level, but also for a lot of amateur photographers, who take pictures of everyday scenes in the form of photos of landscapes, persons and holiday pictures; also, such photographs shall be deemed photographic works, as far as the arrangements used cause distinctiveness […]. The development of the Internet and digital photography has created specific legal issues as regards how easy is to copy a digital image. I entirely share the opinion of one commentator, who explains that perhaps we now live in the era of the wrong common thought that the photographs that are online can be used for free. . It should be noted that people not only use these sites to post personal photographs, professionals also use this to promote their business and gain clients. Thus, social media has become one of the most important tools for marketing purposes in some industries such as real state or fashion. . Both websites outline the general rights of the copyright owner. They also stand out the measures taken by them when they receive a report of infringement (such as remove the infringing content). In my view, Facebook does not create a lot of problems regarding the copyright of photographs in comparison with Instagram, because its particular focus on image. The policy of Instagram is that when users join to this platform, they exercise a non-exclusive, fully paid and royalty-free transferable, sub-license to use the content, which means in practice that you post licence your image to Instagram without any reward in exchange. Some photographers, who use this platform for working, have expressed its concerns about this policy because for example they have discovered that a company in other country has stolen and is used their photos, without permission, for marketing purposes. All of this, without forgetting the problems created by the screenshots, through you can get an image without losing quality and use it. Flickr is one of the most important platform of photography nowadays. Photographers, both professional and amateurs, use this platform as a photo management and sharing application. it is interesting that it permits to categorise the kind of licence that you want to provide at the time of uploading the photographs, however there is no protection for screenshots in this platform.
c) Specific problems created by search engines (Thumbnails) regarding the reproduction and moral rights of the author.These are search engines that specifically search for images and return results as small pixel size of the pictures or photographs (Thumbnails). The most famous is the Google’s internet search engine. Potentially, these small copies amount to copyright infringement of the images reproduced, but there is an exception of ‘making a temporary copy which is transient or incidental’, that should be considered. There is not harmonise position at international level regarding these engines. For example, in the US, image search has been quite extensively litigated. The current position is that displaying image thumbnails in results generated by an image search engine does not infringe copyright under the flexible US fair use provisions (Perfect 10 v Google and Amazon [16 May 2007]).
7. Preliminary protection of works rather than claiming infringement in Courts: Rights-management information (RMI).The WIPO Treaty and the WIPO Performances and Phonograms Treaty provides in its art. 12 of the first one and arts. 18 and 19 of the latter, the obligation of Contracting Parties to provide adequate and effective legal remedies against unauthorized removal or alteration of electronic RMI and the use of works from which RMI has been removed or altered without authorization. RMI should be distinguished from technological measures (TPM). TPM protect the work through the control of the access (encryption), while the purpose of the RMI is no other than the identification of the work, the author, as well as provide information about the terms and conditions of the use of it, therefore RMI frequently serves as a means of compliance with the moral right of attribution. RMI often takes the form of watermarks placed in the protected content. Watermarks could be visible or invisible. There are visible when a name or logo is placed over the image. Invisible watermarks, that are more expensive, incorporate a unique digital code into an image that is invisible to the naked eye. Watermarks can also be used to track images. However, the protection given by watermarks is not perfect. Visible watermarks obscure the image and the process to erase them is not tricky, when placed near the edge of an image, for example, they can be simply cropped out and even the ones that are across an entire image can be removed by digital programmes. Indeed, Google created a software that can erase watermarks from photos, and also has created a technique to get more secure watermarks, which will be more difficult to remove, which may not be take too long to be defeated in the future. As a result, RMI have an important role to play in the digital environment as regards at least identification and making more difficult the use of a work without consent. Even, some famous photographers such as Rick Bronks, sharing how he protects his copyright, recommend the use of watermarks to protect photographic works, as well as highlighting the importance of the moral rights over the economic rights . See also the opinion of Riyadh Al-Balushi when he pointed out that Omani photographers may rely on the use of RMI. Other opinions discourage people from the use of watermarks on the basis that they destroy the work.
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