individual expressions of those ideas. How-
ever, recreation can reach the point of unauthorized copying if a photographer purposely
tries to recreate some of the main creative elements of the original image.
Generally, the more elements of an image
that have been set up by a photographer, the
greater the image’s protection under copyright laws and the less another artist can borrow or recreate from it. Some works have what
courts describe as a “thin” copyright because
the subject matter underlying the image is
common, and no one photographer would be
entitled to prevent others from making a photograph of a similar subject matter. Examples
of permissible inspiration from various cases
include photographing a baby against a white
background, commercial product shots or an
image taken at a popular tourist destination.
The legal term is “scènes à faire,” which basically means that things that necessarily flow
from the underlying concept are permitted.
This permits photographers to use standard
poses, backgrounds and other styling details
without inadvertently violating someone else’s
Highly creative photographs, on the other
hand, will be entitled to greater protection and
less borrowing will be permitted before the
copying is considered a copyright violation.
For example, when a photographer captures
a highly orchestrated scene that did not exist
as such without the photographer’s influence,
these creative elements will be protected as
the artist’s original expression. It is still possible to be inspired by those elements without
reaching the point of unauthorized copying,
but the line is much finer in this case.
Ultimately, whether one photograph in-
fringes on the copyright of another photog-
rapher will depend on a number of elements,
including how strong the copyright is in the
original image (how original it is), how similar
the second image is to the original and wheth-
er those similarities encompass the protect-
able elements of the original image or only the
idea or scènes à faire elements of that image.
As a practical matter, a photographer’s work
should express his or her own point of view.
If a photographer recreates a body of work
that has been previously created by another
artist, without adding new meaning or insight,
it may cause him or her to be perceived as a
plagiarist or copycat, and whether a claim is
brought or not, it can affect one’s reputation
or career. EDU
Nancy E. Wolff is a partner at
Cowan, DeBaets, Abrahams &
Sheppard, LLP. Her practice
focuses on intellectual property and digital media law.
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