Copyright: Be Aware of its Limitations

Photographers, and indeed all artists and creative people, have rights to the protection of their work in terms of international copyright laws. No matter how much you may claim your right to a copyright or however well notified the public is of your rights, this does not mean all you believe is protected by copyright is actually protected.  There is vast opinion on the subject of what splits an idea or concept from a protectable, fixed and tangible medium of expression, the idea–expression dichotomy.

It is generally accepted that photographic images are automatically protected by copyright.  Thus no third party may infringe this copyright by copying the image, or publishing your art work.  The image is sacrosanct in that respect.  Unless permission is granted by the author, the image may not be copied in its exact form, verbatim, or altered; or published for gain or otherwise.  It would be a gross plagiarism to copy another’s photograph and represent it as your own.

Take a hypothetical case in point.  A photographer snaps an image of a model standing under the Eiffel Tower at an aesthetically pleasing, perhaps unique angel, or, maybe, a bunch of grapes next to a wine glass with a cork-screw arranged in a clever or peculiar way.  Both images would be copyright protected.  Another photographer comes along and takes almost the identical images but with subtle differences.  Both sets of images are similar, the ideas or concepts are the same, but the expression, or the images themselves, are unique to the photographer that took them.  The idea behind the creative expression could have been co-incidental or otherwise.

A section of the United Kingdom act on copyright is actually quite specific as to the rights to an abstract idea or a concept.  It states, inter alia,

“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…”

It is evident that copyright law is excogitated to protect the manifestation of concepts or protectable expression rather than the fundamental ideas themselves. Copyright, thus, does not protect ideas, only their material expression and in law the idea-expression divide is a legal doctrine which limits the scope of copyright protection.  Ideas, of course may be patented, thus conferring proprietary rights in relation to general ideas and concepts per se, but very few photographers would have either the time or the funding to patent the ideas behind their images.

In the United States there is a school of thought referred to as the merger doctrine.  The principle here is that if the idea or concept underlying the work can only be expressed in one single way, or they are so tied together, then the work’s idea and expression thereof merge.  This is being utilized frequently in the courts and its application fails even to save apparently protected expression from infringement.

Likewise, with the related doctrine of scenes a faire (a term that refers to characters or places that are standard to some general theme or topic), the courts will not protect a copyrighted work from infringement if the expression embodied in the work originates from a commonplace idea.  Where there is no other way of photographing a concept, the courts prevent the monopolisation of that idea through the application of the doctrine, and thus scenes a faire is not capable of being protected by copyright.

Returning to our hypothetical examples, it is considered that where claims might be made by the first photographer for infringement of copyright, then the court would probably go on to find firstly that the infringement was to the unprotected idea and not the expression.  Given that the later photographs were not virtually identical, being differences in light and shadows, colours and angles one might expect the merger or scenes a faire doctrines may be applied and the more previous photographs would not be held to be infringements.

These principles, probably the most basic of copyright law, originating from common law, have beaten their often repeated paths through diverse Supreme Courts around the globe over the years and the idea–expression doctrine remains the same that ideas and concepts go into the public domain while the specific expression of the author is protected and remains under his or her control.  Photographers, and indeed artists and writers, should understand these concepts before venturing claims for their abstract ideas rather than their truly protectable expressions.
Sources: – various
The Idea-Expression Dichotomy in Copyright Law – Edward Samuels – 56 Tenn. L. Rev. 321 (1989)