Photography and Copyright

The New York Times had a story yesterday about an exciting joint venture between the International Center for Photography in Manhattan and the George Eastman House in Rochester, New York called PhotoMuse. PhotoMuse's goal is to have available, for free, online, by 2006, almost 200,000 photographs. Included would be many iconic works since the two centers have plates and negatives of the works of Ansel Adams, Alfred Stieglitz, Edward Steichen, Lazlo Moholy-Nagy, Weegee, Roman Vishniac, and many many others. In some cases copyright is also owned, in others not, and that will pose problems.

Particularly promising is the way the search capacity is being established: one will be able to search by photographer, by topic, as well as in technical ways, like for albumen prints or even types of cameras. There are commercial sites, like Corbis and Getty, but they don't allow free use. The Library of Congress has a digital collection as does the Met and the National Museum of Photography, Film and Television in Bradford, England.

Photography was not subject to copyright protection in the United States until 1865, and came about as a result of Brady's sensational photographs of the Civil War. The major test of the statute, in particular its constitutionality, came in 1884, in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, which involved photographs of Oscar Wilde taken by Napoleon Sarony in his Union Square, NYC studio during Wilde's tour of the United States. (The one where he stated to Customs upon arrival, "I have nothing to declare but my genius"). Wikipedia has a nice article about the case.

Appropriately to this posting, you can view, download, or purchase copies of all 19 of Sarony's photographs of Wilde online from the Library of Congress since Wilde had to deposit copies for registration to obtain protection. Here's the search already done for you, beginning with the particular one at issue in the case (No. 18).

Sarony explained how photographs could be original, however one question raised but not decided was possible joint authorship between the photographer and the subject; not as a matter of law, but as a matter of fact given the subject's contributions to the aesthetics that gave rise to the originality. If you view all 19 of the Wilde photos and do some background research on the case, a case can be made out for joint authorship between Sarony and Wilde. Under the current statute, there is a definition of joint author, which of course adds the element of intent: "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. "

That requirement will eliminate most claims of joint authorship by the subjects of photographs, but it is important to realize there is no per se rule against such claims. (An excellent review of almost all issues involving copyright and photography is found in Judge William Pauley's opinion, SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, (SDNY 2000)).

Photographs also featured in a VARA decision handed down Tuesday, Lilley v. Stout, 2005 U.S. Dist. LEXIS 14313 (D.D.C. July 19, 2005)(not available on the court's homepage yet). This is an issue I care about, having convinced the House Judiciary Committee to add, on February 28, 1990, photographs to the list of works of art covered by VARA. But because, as noted in my earlier posting VARA is really a preservation statute, and due to opposition from newspapers and book publishers, only a small subset of photographs could be protected, "a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer signed or consecutively numbered by the author."

In Lilley the court correctly found this definition had a plain, unambiguous meaning, covering both prints and negatives. There are, however, some thorny questions, principally the "for exhibition" limitation: what if a work was intended for exhibition purposes but was later used for nonexhibition purposes? What if a work was created for nonexhibition purposes but is used for exhibition purposes? Note that the statute doesn't refer to the intent for which the photograph was created, but rather the purpose for the production.