Thursday, July 21, 2005

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.


Anonymous said...

Thought-provoking, as usual.

>"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.

How would you draw that line, "as a matter of fact given the subject's contributions to the aesthetics that gave rise to the originality."

Assume the bride hires the photographer, and decides who is in several formal photos taken after the ceremony. Bride's family, groom's family, groom and best men, bride and bridesmaids. These all seem to be fixed "by" the photographer, "under the authority" of the bride. Are they co-authored?

At the reception afterwards, is there a difference between the candid subjects and the self-consciously posing subjects, in terms of authorship?

In deciding whether the work is fixed "under the authority" of the subject, is there a difference between the affirmative and permissive exercise of that authority -- between asking the photographer to take your picture, and being obliging when the photographer asks you to stand still and say "cheese"?

Suppose the bride is particularly neurotic and requires the photographer to sign a work-for-hire agreement. Does its enforcement as to a particular photograph depend on whether that particular photo actually gets into the wedding album -- a compilation?

William Patry said...


In your wedding example, I don't think there is any claim to joint authorship. It is not enough to select who is going to be in the picture, I think you have to exercise some control over, make some contribution to the actual creation.

As for the neurotic bride, the signing of a work for hire agreement for works outside of the nine specially ordered or commissioned categories (as photographs are outside) can't make
something a work for hire.

A few cases have made positive statements about joint-authorshp with a photographer and support the view I expressed in the posting. See e.g., Brod v. General Publishing Group, Inc., 2002 U.S. App. LEXIS 2544 (9th Cir. Feb. 15, 2002)(triable issue of fact about whether text author could be joint author with photographer on book "The Golden Age of Television"); Robinson v. Buy-Rite Costume Jewelry, Inc. and MTV Networks, 2004 U.S. Dist. LEXIS 16675 (S.D.N.Y. Aug. 23, 2004)(MTV was joint author with photographer where MTV contributed to shoot by selecting models, their clothes and jewelry,and posing them); Gillsespie v. AST Sportswear, Inc., 58 USPQ2d 1134 (S.D.N.Y. 2001)(denying summary judgment against claim of joint authorship by art director and noting "Persons other than the photographer can certainly have authorship rights in a photograph, based on their own original contributions").

But Natkin v. Winfrey, 111 F. Supp.2d 1003,1010-1011(N.D. Ill. 2000) rejected a joint authorship claim by those who assisted in suggesting Oprah Winfrey's facial expression, attire, the look and mood of the show, choice of guest, etc.

Anonymous said...

I am sitting in a room with a Sarony photograph on the wall I acquired as a very young lawyer in a small store in New York City for about $2.00. He used a very distinctive signature that incorporates the (c) symbol inside the bottom curve of the first capital letter in his name.

You need to look at the Burrow- Giles decision to see what elements of the photographic process were considered for the purposes of finding a photograph to be on constitutional grounds both a work of authorship and a writing. Just being the subject of the photograph is probably not enough even if you are "performing" in some respect. I would suggest that for joint authorship in the case of a photograph the participation has to be in the production of the resulting photograph itself.

William Patry said...

I agree with Anonymous that there has to me more participation by the subject than just being the subject, but the courts haven't required the subject to actually manipulate the photograph. It is likely the case that Wilde didn't contribute enough, but if one looks at all 19 - and when I worked in the Copyright Office (as a younger lawyer) I did - and read a bit about how the photos came about, Wilde did more than just sit there. He chose the outfit and suggested some of the poses.

Anonymous said...

Better take another look at standard model releases to make sure they assign the interest in the copyrightable subject matter contributed by the model and then batten down the hatches thirty-five years later.

Anonymous said...

One issue that's never occurred to me until reading that decision is the facial narrowness of the Copyright Clause. If one were to take a strict textualist approach, Congress would have the power to protect only "writings" by "authors," and things like movies, sound recordings, etc. would be unprotected. Clearly this is one of those "living" elements of the Constitution, but I never hear anyone complaining about it.