"Originality" and "Reproduction" in Copyright Law with Special Reference to Photographs

Louis Harms

doi:10.17159/1727-3781/2013/v16i5a2446

Abstract

Turning to lessons from foreign jurisdictions, this note explores from a copyright perspective the fact that photographs are produced mechanically and more often than not without any effort or mental input. A minute number are taken for anything but personal use and in the digital age photographs tend to have a high degree of mobility and are also ephemeral and without any commercial value. It is accordingly difficult to justify in general terms copyright protection for photographs. Two of the main legal issues in this context are the criteria for originality and the meaning of the reproduction of a photograph. These two issues form the central point of discussion in this contribution.

Highlights

Black cabs and red buses are part of the London landscape
It is unlikely that the poor tourist, turning around and photographing the statue of Mr Mandela on Parliament Square, would give a thought to the fact that he was infringing the copyright of the sculptor, at least under South African law
The example of the red bus in London instead of a minibus taxi passing the Union Buildings in Pretoria is chosen not because of affectation but because of the judgment in the England and Wales Patents County Court in Temple Island Collections Ltd v New English Teas Ltd,2 which dealt with a photo of a red bus passing those particular Houses

Summary

LTC Harms

Black cabs and red buses are part of the London landscape. Countless tourists, bedazzled by the sight and using expensive Nikons, cheap disposable cameras or mobile phones, have been taking snapshots of a red bus passing the Houses of Parliament in Westminster, quite often because they had seen the scene before in some or other tourist brochure, all of them oblivious of copyright issues. In Feist Publications Inc v Rural Telephone Service Co29 the US Supreme Court revisited the requirement of originality without specific reference to photographs (the case dealt with a compilation) and concluded that the sweat- of- the- brow test did not suffice It held, per O'Connor J, that "original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.". Contrary to what the court held in Temple Island, the recreation of a scene that is independently photographed does not infringe the copyright in the earlier photograph, as was clearly said in Creation Records, a case strangely not referred to in Temple Island: two works created from a common source do not by reason of that fact involve copying one or the other, similar they are.

LTC HARMS Bibliography