When photographers think about image theft, copy-and-paste is the first thing that comes to mind. Copyright law is far more complex than that, and the courts are still ironing out certain details (such fair use).
Pixsy spoke with several of our copyright attorneys to identify famous copyright cases that changed the game forever for photographers.
Note: We mostly chose United States copyright cases to keep things consistent. We promise that copyright is equally complicated (and different) elsewhere in the word.
#1 Copyright can also protect the look and feel of a photo.
Jonathon Mannion photographed an iconic image of basketball player Kevin Garnett for SLAM magazine. The beer brand Coors recreated the photo for an LA billboard advertisement.
The court found that the (1) rendition, (2) timing, and (3) creation of the subject can influence the copyrightability of a photograph, and ruled in favour of the photographer.
His victory was very significant. Copyright cases like these value the look and feel of a photo, and as Mannion said in a 2013 interview, photographers now have a foot to stand on when others change their images for commercial gain.
We highly recommend reading Steve Ayr’s article, which explains the principles of originality, rendition and subject creation outlined by this case.
#2 You don’t need permission for street photography.
Upset about his portrayal in the photo above, a Hassidic Jew sued the photographer for privacy and religious reasons.
The 1st Amendment allows photographers to display, publish, and even sell street photography without the subject’s permission. It’s always nice to ask, but freedom is part of the appeal behind street photography. Until this case, it was a right taken for granted.
Had the photographer lost, then many famous photographs including “Subway Passenger, New York City,” might have been removed from publication and sale.
#3 Fair use in copyright covers more than comment and review
Artist Richard Prince used dozens of unlicensed photos for his project “Canal Zone”. The photographer, Patrick Cariou, filed suit for copyright, which Prince countered with a “fair use” defence.
The Southern District of New York said the photos were an infringement, as Prince wasn’t “commenting upon” the original works. The Second Circuit overturned their decision, believing the alleged infringements were transformative enough to be considered fair use (including the one above).
When the judge ordered that Prince’s works be impounded and destroyed, it lit a fire between the photography and artistic communities.
In the end, the ruling thickened the fine line between commercial art and digital media. It’s a line Prince just loves to cross, however. He’s currently fighting off more copyright cases over his work – exhibiting an enlarged Instagram image, and for using unlicensed photos of The Sex Pistols’ bass player Sid Vicious.
#4 Copyright protects creativity, not effort.
Feist copied 4000 telephone directory entries from Rural Telephone Services for its phone book. Rural sued for infringement, claiming their work was protected under the “sweat of the brow” doctrine.
The court ruled that Rural’s directory was nothing more than an alphabetical list, and was not copyrightable. Before Feist v. Rural, courts followed the “sweat of the brow” doctrine, where authors received copyright simply for effort and not creativity.
What does a copyright case about phone numbers have to do with photography? It all revolves around the “threshold of originality”. If you claim a photo is yours, there must be some creativity involved. A photo taken by a monkey or security camera, for example, doesn’t count.
#5 You can only hold copyright over what you create
Sony Pictures produced a TV movie based on the Clark Rockefeller case. The film recreated a famous newspaper photograph of the suspect and abductee. The photographer alleged the studio had infringed copyright by depicting his photo using similar poses and composition.
The District Court ruled that no jury could find “substantial similarity” between Sony’s photo and Harney’s original.
The most interesting part of this ruling was what was deemed “protectable” in the original photograph. The daughter riding on her father’s shoulders, the clothes they were wearing etc. All of these were factual elements; similar to the phone directories in the previous case. The framing, tone, and composition meanwhile were completely changed for Sony’s recreation.
If the studio had chosen a more observant cinematographer, perhaps the outcome would have been different…
#6 You can’t use someone’s photo just because you found it on Twitter.
Photojournalist Daniel Morel sued Getty Images and Agence France-Presse for taking and selling photos of the 2010 Haiti earthquake from his Twitter account.
Despite this ruling, many still believe that copyright is lost when a work is posted on social media. As we explain to infringers every day, this is simply not the case, and it was an expensive lesson for Getty.
#7 You still own copyright of a photo even if you broke the law taking it.
The owners of Dixie Plantation sued a photographer for trespassing onto their property to take a picture, which he then sold. The lawsuit sought an injunction that would prohibit further distribution of the photograph.
After the ruling by the court, trespass was the only surviving claim. The case was ultimately settled confidentially, but the photo notably remained for sale.
This U.S. court case is one of the most significant regarding trespassing for commercial photography. No question; Ham poked his camera where it didn’t belong, but the Charleston Foundation went a step further by claiming they had lost the “exclusivity of a unique image and representation found on Dixie Plantation”.
The court ruled that simply taking a photo of private property did not constitute a transfer of copyright. Rightfully so; at Pixsy we often come across infringers who think this is a valid excuse for stealing photos.
#8 Buying prints or negatives does not give you the copyright
John Maloof acquired and published the unprocessed photos of late street photographer Vivian Maier. A lawyer and former photographer, David C. Deal, represented Maier’s closest living relative to claim copyright over the images.
A judge approved a settlement between Maloof and The Estate of Vivian Maier. The details of this agreement remain confidential, but we do know that it allows Mr. Maloof to continue to exhibit Maier’s photos while “preserving her legacy”.
#9 Copying a Photoshop technique may infringe copyright.
An English tea company used this image of a red London bus driving across a grey-scaled Westminster Bridge. It was almost identical to a photo by a souvenir company. The infringing image was withdrawn after a court dispute, but the tea company later produced new images they believed were less similar. The souvenir company disagreed…
A UK judge held that the new images were an infringement of copyright. Specifically, the tea company had reproduced a combination of “visual contrast features” in the scene.
The judge’s logic: using colour in a black-and-white photo (ala Schindler’s List) isn’t copyrightable, and neither is combining iconic images like a double-decker bus and the Houses of Parliament. But when you put both together, it’s a new “intellectual creation”. Thus, it was the expression of the skill and labour expressed by the photographer that was protected.
The idea/expression dichotomy is one of the trickiest notions in copyright cases, and this “Red Bus” ruling remains controversial in legal circles. It’s important to note that the infringer definitely knew about the claimant’s image before making his own, as he’d lost an earlier action in court involving the same image.
#10 Don’t steal pictures for porn covers. And if you do, it could cost you $130,000.
Lara Jade Coton was just starting out as a professional photographer, when she discovered an adult film company lifted a self-portrait from her Deviant Art profile and used it as a DVD cover.
After three years in court, Lara was finally awarded $130,000 in damages for copyright infringement, misappropriation of her image and professional humiliation.
There’s more to this case than just “don’t steal photos for porn!”. It was one of the first major copyright cases to show how easy it is to steal photos online, especially over international boundaries (Lara, a U.K. citizen, had to take her case to a U.S. court). Thankfully, Lara’s victory proved that photographers don’t have to just sit back and let it happen.
One final thing we have to mention is the famous response her infringer gave when she asked for damages:
“Removing your image will help improve the sell of the DVD…so far it bombed.“