Copyright in deriving from aerial photography
Notes from 'The Law of Photography and Digital Images' – Christina Michalos
1953: Bauman v Fussell (UK) held that the positions of birds not under the photographers control in a photograph not a substantial part of the photograph. A painting copying those positions was not infringing.
Change of medium
Changing the medium of the photograph by drawing, painting, sculpting or filming the image may amount to infringement but only where those elements of the photograph copied are (1) original and protected by copyright, and (2) form a substantial part of the photograph.
In Bauman v Fussell it was held that where a painting based on a photograph of a cock fight only reproduced the relative positions of the birds to each other there was no infringement. It was held that the positions of the birds did not amount to a substantial part of the photograph. It should be noted that the decision did not specifically hold that positioning of elements of an incident beyond the photographer's control were not capable of forming part of the originality. It is submitted that the reasoning in this case is doubtful and to capture a fast-moving event like a cock fight requires a level of skill in respect of the composition and the decision as to when to take the photograph. Although the relative positions are not the work of the photographer, capturing them in a particular way when skill is required may form part of the originality of the work. This will not always be the case – in some instances the relative positions of objects in a photograph will be commonplace.
Where photographs of antiques were copied by tracing the outline of the object and simplifying the object to an outline, there was no infringement as what was original in the original photographs (such as lighting, angle and focussing) were not reproduced.[87: Antiquesportfolio.com v Rodney Fitch  F.S.R. 23] If there is no appropriation of the original elements of the photograph or of the photographer's labour and skill in reproduction, there is no infringement.
In a Canadian case [Tony Stone Images v Arscott and Corel Corporation (unrep.) Court of Ontario (General Division), June 28, 1996, Day J], an artist entered a digital drawing in the Corel World Draw Design Contest depicting a native American Indian in profile with an American flag and a cowboy in the background which won the contest. The Indian in profile was based on a photograph by Nick Vedros entitled "the Potawatamie Indian". The photograph had been licenced to a photographic library who sued the artist and Corel for copyright infringement. Notwithstanding that in the digital drawing some details of the profile in the photograph had been altered and there had been a change of medium, the court granted summary judgment in favour of the plaintiff.
Taking an original photograph and making alterations to it through the use of digital manipulation which fails to destroy the elements of the photograph in which originality subsists will amount to an infringing copy [Mendler v Winterland Production Ltd]. Conversely, there is no infringement if all that is copied from the photograph is non-original material and there is no appropriation of the photographer's labour and skill [Antiquesportfolio.com v Rodney Fitch].
Aerial photographs and orthophoto
The fact a photograph is taken from a helicopter or other perspective by a human author has no bearing on the issue of originality and the court will look for the same indicators of originality as in other photographs. The photographer has to make choices as to the focus, time to take the photograph, angle, etc. Where, however, the images are taken automatically or are intended to be an accurate scale representation of land the position is more difficult.
A standard aerial photograph will have no uniform scale and will distort the image due to perspective and the topography of the land. An orthophoto corrects these distortions and produces an image with a uniform scale from which distances can be measured as they could be from a scale map. An orthophoto is intended to reproduce as accurately as possible various features of its subject topography. In some ways therefore orthophotos entirely lack originality as they are mere copies of geographical features. It is submitted that orthophotos are comparable to maps and should be treated for the purpose of assessing originality in a similar way to maps. Protection does not extend to the geographical features represented but only to the orthophotographer's selection of geographical data, presentation, use of symbols and annotation and any other artistic additions.
[63: Cary v Longman (1801) 1 East 357; Geographia Ltd v Penguin Books Ltd  F.S.R. 208,209]
In the Canadian case of Weetman vs Baldwin [64: British Columbia Provincial Court, October 3 2001;  Carswell B.C. 2499;  B.C.P.C. 292.] the claimant had produced a recreational map combining aerial photography with topographical photography. He combined aerial photography digitally with trim data sets obtained from the British Columbia Government. Some roads and trails were missing on those maps and he set out to properly map them digitally from his orthophotos. After completing the map he deliberately mislabeled a lake in order to track any copyright infringement. About eight months after his map was released commercially, the defendant brought out a similar map which contained the same misspelling of the lake. The defendant's map contained a great number of similarities in the mapping of the roads and trails which the claimant contended could only have come from his map.
It was held that the differences in the claimant's orthophoto map which were the natural result of his selection of sources, interpretation of those sources and skill and judgment in depicting that information were capable of copyright protection.[65: Applying Mason v Montgomery Data Inc 967 F.2d 135 (5th Cir. 1992).] The originality and creativity that was protected was the claimant's combination of the aerial photographs with the trim data sets using specially created software which achieved an accuracy of location and measurement on his map which had not previously been achieved by existing maps of the area. It was found on the evidence that the defendant had infringed the claimant's copyright by copying at least six features from the claimant's map, including the name of the mislabeled lake.
Photograph of a random event over which the claimant has no control
Where the photograph is of subject matter over which the photographer has no control – such as a news event – it is arguable that there is no originality, as all that is occurring is a reproduction of the scene. Conversely, it can be said that even in the simplest of photographs, there is a decision as to when to press the shutter which is sufficient. It is submitted that provided that some minimal element of skill is present in the decision as to when to take the photograph, this will suffice and copyright will subsist in such a photograph. Even when the photographer is present by luck, he still has to frame the subject with the camera and select the moment to take the photograph.
In Bauman v Fussell [67:  R.P.C. 485.] the plaintiff took a photograph of a cock fight in Cuba. The defendant painted a picture based on the photograph. Although the photograph was of a scene over which the plaintiff had no control, it was not disputed that he had a copyright in the work. The report suggests that the painting was "entirely different" from the photograph, save for the position of the birds relative to one another. It was held by a majority (Somervell and Birkett L.JJ. with Romer L.J. dissenting) that there had been no infringement of the photograph. The key issue was whether the defendant's painting reproduced a substantial part of the photograph.
Somervell L.J. observed:
- "It is an individual's work that the Act is intended to protect. I do not think that a painter who was minded to make a picture of [a procession from a photograph], in his own style, would be committing a breach of copyright if he used the photograph to enable him to get accurately the relatives positions of those taking part. What he would be taking would not be a substantial portion of the plaintiff's work. At the other end of the photographic scale one can imagine a case where the photographer has made an original arrangement of the objects animate and inanimate which he photographs in order to create a harmonious design representing for example, Spring. Here the design would be his work. The position of the birds here is betwixt and between. It is, I think nearer to the former than the latter category."
Birkett L.J. observed that he found the question of whether the reproduction of the birds:
- "One of the main contentions of the [plaintiff] was that the position of the birds was reproduced in the picture and that was the reproduction of a substantial part of the photograph. I am bound to say that it was this part of the case which occasioned me the most difficulty. The appellant did not arrange the position of the birds, but no doubt he waited for the moment to take the photograph when the birds were in the position he wanted them to be and his photograph produces the position."
Birkett L.J. concluded that the county court judge had properly directed himself in asking whether a substantial part of the photogarph had been reproduced and considered that his findings should not be disturbed.
Romer L.J. dissented as to whether, on the facts, a substantial part of the picture had been reproduced and said:
- "Does then, the form of the birds, separately and relatively to one constitute a substantial part of the photograph?… I have myself arrived at the conclusion it does… The photograph is of two birds engaged in the one activity for which they were reared and trained. I cannot but think that the posisions in which the camera caught them are the essence of the plaintiff's skilful presentation of that activity…
- "Is it to be said that any artist is entitled to trace from published photographs of this character the outline of forms of brids… and use them as the basis for paintings of his own? I should have thought that by so doing, he would be infringing the copyright in the photographs – and none the less because he painted a background or feature of his own creation. Or assume the case of a man who preferred photographing big game to shooting them and was fortunate enough and sufficiently skilled to take a series of photographs of some incident which had rarely if ever been caught by a camera before, for example a battle between an elephant and a tiger; would the figures of the animals be at the disposal of any artist who wanted to paint a similar incident but was reluctant to visit the jungle for his material? Here again, the copying of the forms of the animals by the artist for his picture would, in my judgment constitute a reproduction of a substantial part of the photographer's work."
The authors of The Modern Law of Copyright & Designs suggest that Birkett and Romer L.JJ. both thought that the capturing of the cocks' position was capable of being a substantial part of the photographer's work. And further, that the Court of Appeal did not hold that an element of serendipity of choice or image capture is incapable of being part of the original work.
It is respectfully submitted that Birkett L.J. did not go so far as to suggest the cocks' position was capable of being a substantial part. All he said was that it caused him some difficulty and declined to interfere with the judge's finding of fact. It is, however, correct that this case did not specifically hold that positioning of elements of a captured incident beyond the photographer's control is not capable of forming part of the originality.
It is submitted that the dissent of Romer L.J. is to be preferred and if this specific question did fall to be determined under English law, it is likely that originality would be held to subsist in the relative positions. It is submitted that the decision in when to take the photograph and the angle to take it from, particularly in a fast moving event such as a cock fight, would require sufficient skill as to establish originality. This can be distinguished frmo a photograph where the relative positions of object do not form part of the protectable originality, such as buildings in relation to each other or the permanent setting of a monument.
In the United States in the case of Time Inc v Bernard Geis Associates copyright was held to subsist in the film frames of the Zapruder home movie of the assassination of President Kennedy. The argument that the images were devoid of creativity was rejected. It was observed that the film had "many elements of creativity" including selection of the camera, the kind of film, the kind of lens, the area in which the pictures were to be taken, the time they were to be taken, and after testing several sites, the spot on which the camera would be operated.
Similarly in Pagano v Charles Beseler Co [75: 234 F. 963 (SDNY 1916) copyright was held to subsist in a photograph of a scene on Fifth Avenue, New York. The court considered that to take such a photograph undoubtedly required originality stating:
- "Anyone may take a photograph of a public building and the surrounding scene. It undoubtedly requires originality to determine just when to take the photograph, so as to bring out the proper setting for both animate and inanimate objects with the adjunctive features of light and shade etc."
No infringement where only idea of photograph taken
There are many cases to the effect that where what is repeated in a second photograph is only the expression of the idea of the first, there will be no infringement. [8: e.g. International Biotical Corp v Associated Mills Inc 239 F. Supp. 511, 514 (N.D. III 1964) (photographs of heat lamps in specific poses); Kisch v Ammirati & Puris Inc 657 F. Supp. 380, 382 (S.D.N.Y. 1987); Wallace Computer Serv. v Adams Business Forms 837 F. Supp. 1413, 1417 (N.D. III. 1993). In Gentieu v Muller [9: 712 F. Supp 740.] it was held that the idea of "floating naked babies" was not subject to copyright protection. The plaintiff was only protected from identical copying of her work. The defendants had photographed different naked babies in various poses by a photographer who had developed his own method and there was no infringement.
Independent creation: no requirement that the work be unique
Originality does not require a work to be unique or novel. An independently created work which, by coincidence, is identical to an earlier work is not precluded from copyright protection. The comments of Peterson J. in University of London Press v University Tutorial Press [17:  2 Ch. 601, 608–609] are often cited, namely:
- "The originality which required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author."
The classic example given in relation to photographs is that if two people independently take a photograph of the same building, both will have copyright in their respective photographs. The existence of one photograph does not prevent the second from having its own copyright, unless of course it was copied from the first. A photograph does not give rise to a copyright in the subject matter of the photograph.
Photographs of three-dimensional objects
The low level of originality required for copyright to subsist is illustrated by cases concerning photographs that document 3-dimensional (3-D) objects, such as sculptures. Copyright subsists in photographs of 3-D objects even where the photograph is merely intended to reproduce the object as accurately as possible. [Antiquesportfolio.com v Rodney Fitch] It was held in respect of photographs of antiques designed to bring out particular features of the obejcts, that the positioning of the object, the angle, the lighting, focus were all matters of aesthetic or commercial judgment sufficient for copyright to subsist.
[talks about Skyy vs Ets-Hokin – similar photos of a bottle of vodka]
Although Ets-Hokin's initial photographs were protected by copyright, once the unoriginal elements were discounted, the photographer was left only with a "thin" copyright which protects against only virtually identical copying. [82b Ets-Hokin v Skyy Spirits Inc 323 F. 3d 763 (9th Cir. 2003).] Skyy's photographs were not identical – the lighting, shadows and highlighting differed and the only constant was the bottle itself. The defence of the doctrine of merger applied, namely that the court will not protect a copyright work from infringement if the idea underlying the work can only be expressed in one way. The related defence of scenes a faire, where the court will not protect a copyright work from infringement if the expression embodied in the work necessarily flows from a common place idea was also applicable and the infringement claim failed.
It is submitted that, as for photographs of work of art discussed below, a non-original photograph of a mundane 3-D object taken "straight-on" which is intended to be an accurate copy of that object, any copyright that subsists is a "thin" copyright which is only infringed by actual reproduction of that image. [82c See SHL Imaging v Artisan House 117 F. Supp 2d 301 (SDNX 2000) and discussion below at paras 3-044 to 3-047, Ets-Hokin v Skyy Spirits 323 F.3d 763 (9th Cir. 2003).] It is the work labour and skill iln creating that image which is protected. That work, labour and skill is only taken if the specific photograph or a substantial part of that photograph is reproduced by reprinting that photograph or photocopying it or otherwise reproducing that exact photograph. Re-creation of the image, in the sense of taking a new independent photograph of the same 3-D object, would not infringe. The "thin" copyright conferred on photographs intended to reproduce 3-D objects should prtoect only the work labour and skill and not the photograph's subject. Where the photograph is not just a simple copy of a single 3-D object but has other original elements in the image, re-creation may infringe.
Photographs of works of art
Copyright subsists in photographs of 3-D works of art as the positioning of the object, the angle, the lighting, focus, etc. are matters of aesthetic or commercial judgement, particularly when the photographs are designed to exhibit specific details and features of the objects. [83: Antiquesportfolio.com v Rodney Fitch  F.S.R. 23 at pp.353-354. See also 3-D objects above at para. 3-035.] The position as far as photographs of 2-D works of art, such as paintings, is concerned is presently an open question in English law. The problem is that it can be contended that a photograph designed to record a painting as accurately as possible is not original – it amounts to effectively no more than a photocopy. It is said that the flat nature of 2-D artwork dictates that the camera can only be in one position – straight in front of the work and thus there is not sufficient skill and labour to create originality.[84: For discussion of the problem of galleries and owners effectively obtaining monopoly rights in public domain art works through photography see… R. Deazley Photographigng Paintings in the Public Domain… K. Connolly Butler Keeping the World Safe from Naked-Chicks-in-Art Refrigerator Magnets…] The American copyright text Nimmer suggests that a photograph of a work of art is one of two situations in which a photograph should be denied copyright for a lack of originality. It states: "A photograph of a painting or drawing, if a slavish copy, might be said to lack originality because of the predetermine subject matter and angle."
It is submitted that the contention that photographs of 2-D works of art cannot be protected by copyright because they are bare copies is incorrect and an over-simplification. Photographing works of art to a professional standard is a matter in respect of which a high degree of skill and labour is often required. Many of the choices of the photographer referred to as a basis for creativity apply to photographing works of art – choice of equipment including lighting, films, filters, and exposure control. It is submitted that in respect of a photograph of a 2-D work of art, copyright subsists but it is a "thin" copyright and only protects that exact image from vebatim copying. [87: SHL Imaging Inc v Artisan House 117 F. Supp 2d 201 (SDNY 2000) discussed below at para.3-044.] Infringement would only arise where the reproduction was of that image itself, for example reprinting that photograph or photocopying it. The originality lies in the labour and skill expended by the photographer to create that specific image. As was said in Marco v Accent Pub: "Nonetheless something beyond owning a camera is necessaary to make photographs suitable for a trade journal."[969 F.2d 1547, 1551.] Equally, something beyond owning a camera is necessary to take a photograph of a 2-D work of art that accurately records that work of art. However, recreation by taking a second independent photograph of the 2-D artwork would not amount to infringement, as there is no originality in the subject matter.
[goes on to contrast Bridgeman v Corel with SHL Imaging v Artisan House and Antiquesportfolio.com v Rodney Fitch…] Of these cases, Bridgeman conflicts with SHL Imaging and as discussed below, it is contended that the reasoning of SHL Imaging is to be preferred.
Countries that protect photographs as an original artistic work under the basic national copyright law
3-075. Countries that apply a "work, labour and skill test"
[UK and most countries with UK-derived copyright law; would include US, but following Feist v Rural, that's moving towards…]
3-076. Countries that apply a "creativity" or "work of the mind" test
…these tend to be civil law jurisdicitions where the emphasis is on the personality of the author…
Countries that protect some photographs by copyright/author's right but also have a related right for non-original photographs
[explains that some countries have distinct law for "original intellectual productions" and that other, "non-creative" photos are protected differently – in Austria, Denmark, Finland and Germany, roughly for 50 years after it is first made available to the public (or if not, taken); in Spain, 25 years after making of the photograph…]
The Spanish copyright statute draws a distinction between photographic works and "mere" pictures. Under Art. 128, a photograph or other reproduction obtained by a process comparable to photography that does not have the character of a work (i.e. an original literary, artistic or scientific creation) is protected by the author's exclusive right to authorise the reproduction, distribution and communication to the public under the same conditions as granted to authors of photographic works. The right lasts for 25 years from January 1 of the year following the making of the photograph.
Some other notes:
Art and copyright – Simon Stokes
USA: Copyright Act 1976, s.102b: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
Cases from other jurisdictions show autonomy as choice as well, in determinations of originality and transformation under copyright. In the United Kingdom, the House of Lords used “choice” in describing originality in Designers Guild Ltd. v. Russell Williams (Textiles) Ltd.: the expression of an artistic work represents the artist’s choice. What makes a picture of nature original? In Krisarts S.A. v. Briarfine Ltd. the question arose as to copyright over a well-known view of London. The court looked to
the choice of viewpoint, the exact balance of . . . features . . . , the figures which are introduced . . . the craft may be on the river and so forth. It is in choices of this character that the person producing the artistic work makes his original contribution.145
Choice also can be seen in selective judgment, or discretion. Lord Atkinson in Macmillan & Co. Ltd. v. Cooper writes that a copyright work must entail the expenditure of labor, skill and judgment “sufficiently to import to the product some quality of character which the property did not possess and which differentiates the product from the raw material.”