Does a photograph need to be “original” to be copyrightable?

springrollsCC0Yes, originality is one of the requirements for a work to be copyrightable. To be “original” in copyright terms a photograph must meet two separate requirements: it must be created independently rather than copied from another, and it must demonstrate a minimal amount of creative authorship.

Note that the requirement that a work be created independently does not mean a photograph cannot be substantially similar to another, just that it cannot be copied from another. Judge Learned Hand, a famed legal scholar, described the difference this way: “If by some magic a man who had never known it were to compose anew Keats’s Ode to a Grecian Urn, he would be an ‘author’ and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s [public domain poem].” As unlikely as that scenario may seem, thousands of nearly identical, but likely copyrightable, photographs are taken every day by tourists visiting popular landmarks. Recently, a dispute arose over a photograph of an iceberg taken off the coast of Chile, which won a photography competition. Another photographer claimed the photograph was stolen from her, and submitted her own nearly identical photograph as proof. In fact, it was determined that the two photographers were both passengers on the same cruise in 2006, and took their own original photographs of the same iceberg at almost the same moment. Although that dispute did not reach U.S. courts, it is likely that both photographs would be copyrightable under U.S. law.

The other requirement, of creative authorship, is minimal, and most photographs will meet it. In practice, courts are reluctant to deny copyright to photographs because of lack of originality. However, in one case, a court denied copyright to photographs that were “direct depictions of the most common Chinese food dishes as they appear on the plates served to customers at restaurants.” [1]

  1. Oriental Art Printing v. Goldstar Printing Corp., 175 F. Supp. 2d 542 (S.D.N.Y. 2001).
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