COPYRIGHT
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Copyright Protection in Photographs Limited by the Real World
As with all areas of intellectual property, copyright issues in photography often boil down to, “What can I protect?” and “What can I prevent others from using?” But in many ways, photography is unique. In contrast to works of music, literature and other visual arts, photographs contain relatively objective depictions of real world subject matter. Because photographs generally are not created from “whole cloth” -- but include subject matter that is in the public domain, owned by others, or not protected by copyright -- copyright in photographs is often not as broadly protective. In other words, it is “thinner,” than other works of art.
A recent decision by the Ninth Circuit Court of Appeals illustrates the limitations in protecting real world elements in photographs ((Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 ((9th Cir. 2003)). Ets-Hokin was retained by Skyy Spirits to photograph its vodka bottle for advertising. Ets-Hokin delivered three photos, each containing a side-lit Skyy Vodka bottle displayed in front of a plain white or yellow backdrop. Instead of using these images, Skyy hired and used similar images from other photographers. Ets-Hokin sued, alleging that the newer images infringed his copyright.
Initially Skyy claimed that Ets-Hokin had no independent copyright in the images separable from Skyy’s underlying right in the bottles. But three years ago, the Court held that Ets-Hokin’s many photographic judgments made his images sufficiently “original” to be copyrightable.
Although Ets-Hokin won the earlier battle, he recently lost the war. In March, the Court ruled that even though his images had copyright protection, the newer images were not infringing, as a matter of law, and dismissed his lawsuit.
The Court specifically found that the newer images were very similar to Ets-Hokin’s. But the similarity arose because both images shot a similar real world object -- the Skyy bottle -- that was unprotected by copyright. The Court stated that there can be no copyright infringement resulting from similarities that arise because “the idea underlying the work can be expressed only in one way” (the doctrine of “merger”), or where “the expression embodied in the work necessarily flows from a commonplace idea” (the doctrine of “scenes a' faire”).
The similarity of the images was “inevitable, given the shared [and unprotectable] concept, or idea, of photographing the Skyy bottle.” In contrast, the court found that the elements that were protected by copyright -- the lighting, angles, shadows, highlights, reflections and background -- were all different.
Copyright © 2003 Stephen Filler. Stephen Filler is an attorney (www.nylawline.com) whose practice focuses on intellectual property, copyright, trademark, technology, media, contracts, corporate and photography law. His office is located at 303 South Broadway, Suite 222, Tarrytown, New York, 10591, 914-332-4114,
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