Photographs Are Mechanical Representations Of Facts, And Thus Should Have Only Thin Copyright Protection
from the idea-expression-dichotomy dept
Lawyer John William Nelson has written up a thoughtful discussion of the ruling, and why photography needs a "bright-line rule" that says there is no infringement for making a similar image, but only for copying the actual image (found via Michael Scott).
The post is a little long, but beyond agreeing that the judge in the case clearly blurs (or, perhaps demolishes) the line between idea and expression, it makes a good point about how photography is really "a mechanical representation of facts" and, of course, you cannot copyright facts. This is an issue that has always troubled some, and why, technically, the copyright on a photograph is supposed to be limited to things like the exact framing, the lighting, focus, etc. of the image:
Given that, Nelson suggests that the courts should set out a bright line rule that says the only infringement is in the actual mechanical copying of the photograph -- and not in making any sort of similar image:
A photograph is a mechanical representation of facts. This is unlike a painting, which is a non-mechanical representation of something—be it facts, such as an attempt to paint an outdoor scene or create a portrait of someone, or imagination in the form of how the artist sees the world, such as the Vincent van Gogh’s Starry Night painting. Paintings, therefore, are pure expressions of ideas or facts. Photographs, however, are mechanical expressions of facts.
So can a photograph be copyrighted, even though it is a mechanical representation of facts? Yes.
Remember the Feist case—if the defendant in Feist had photocopied their competitor’s phone book pages then copyright infringement had occurred. They didn’t photocopy the pages, however—they copied the factual data and arranged it themselves. So even thin copyright allows some copyright protection, even if its limited.
A photograph deserves at least thin copyright protection. It is an expression of facts, even if it is a mechanical representation. Originality in the expression exists despite its mechanical origins—the angle, lighting, focus, and framing of the photo are controllable by the photographer. This allows a photograph to be original from another.
Photographs are mechanical representations of fact. Anyone who has ever taken photography seriously understands that these mechanical representations take a lot of work, effort, and result from each individual photographer’s expression of the scene being shot. Further, any commercial photographer will readily tell you of the importance of setting up a scene—be it in a studio, outdoors, or just knowing how to be in the right place at the right time.He notes that there's already a similar such rule on sound recordings:
But extending copyright protection beyond the mechanical copying of a photograph (i.e., scanning it and sending it to all your friends) is extending copyrights in photographs too far. The expression of a photograph cannot be separated from its factual reproduction of actual events. Attempting to do so leads to absurd results.
Therefore, a bright-line rule should reserve copyright protection in photographs only for the reproduction of those photographs. Copyright protection should not extend to the elements within the photographs themselves—doing so results in copyrighting facts, which is beyond the scope of copyright law.
I can record my own version of, say, one of Rihanna’s songs and the owner of the sound recording copyright cannot sue me for copyright infringement. (The owner of the work’s composition and performance copyrights, however, could.)Overall, though, I think that many photographers (and perhaps judges) have trouble with the idea that a photograph is a mechanical representation of facts, even if it's objectively true. Cameras are copy machines. That doesn't mean that photography doesn't take great and amazing skill, or that the results aren't artistic and unique. But they are copy machines, and granting expansive copyright control beyond the mechanical reproduction of the image itself seems to go against copyright laws' basic tenets.