Infringement

Infringement

Infringement of the copyright which subsists in a photograph can be performed though copying the photograph. This is because the owner of the copyright in the photograph has the exclusive right to copy the photograph. For there to be infringement of the copyright in a photograph, there must be copying of a substantial part of the photograph. A photograph can also be a mechanism of infringement of the copyright which subsists in another work. For example, a photograph which copies a substantial part of an artistic work, such as a sculpture, painting, architectural work (building) or another photograph (without permission) would infringe the copyright which subsists in those works.

However, the subject matter of a photograph is not necessarily subject to an independent copyright. For example, in the Creation Records case, a photographer, attempting to create a photograph for an album cover, set up an elaborate and artificial scene. A photographer from a newspaper covertly photographed the scene and published it in the newspaper. The court held that the newspaper photographer did not infringe the official photographer's copyright. Copyright did not subsist in the scene itself – it was too temporary to be a collage, and could not be categorised as any other form of artistic work.

The protection of photographs in this manner has been criticised on two grounds. Firstly, it is argued that photographs should not be protected as artistic works, but should instead be protected in a manner similar to that of sound recordings and films. In other words, copyright should not protect the subject matter of a photograph as a matter of course as a consequence of a photograph being taken. It is argued that protection of photographs as artistic works is anomalous, in that photography is ultimately a medium of reproduction, rather than creation. As such, it is more similar to a film, or sound recording than a painting or sculpture. Some photographers share this view. For example, Michael Reichmann describes photography as an art of disclosure, as opposed to an art of inclusion. Secondly, it is argued that the protection of photographs as artistic works leads to bizarre results. Subject matter is protected irrespective of the artistic merit of a photograph. The subject matter of a photograph is protected even when it is not deserving of protection. For copyright to subsist in photographs as artistic works, the photographs must be original, since the English test for originality is based on skill, labour and judgment. That said, it is possible that the threshold of originality is very low. Essentially, by this, Arnold is arguing that whilst the subject matter of some photographs may deserve protection, it is inappropriate for the law the presume that the subject matter of all photographs is deserving of protection.

It is possible to say with a high degree of confidence that photographs of three-dimensional objects, including artistic works, will be treated by a court as themselves original artistic works, and as such, will be subject to copyright. It is likely that a photograph (including a scan – digital scanning counts as photography for the purposes of the Copyright Designs and Patents Act 1988) of a two dimensional artistic work, such as another photograph or a painting will also be subject to copyright if a significant amount of skill, labour and judgment went into its creation.