Seeing Double: Nearly Identical Photograph Sparks Copyright Controversy

By Loren Pani*

Imagine the following scenario: You go on vacation with a group and take a gorgeous photo of some natural object. Mere seconds later, someone, standing almost exactly where you were standing, takes a photo of the same natural object. Years later you submit the photo for a contest, win the contest, then promptly find out that someone has claimed that you might be infringing their copyright. If this sounds far-fetched, it shouldn’t because it happened to a British student in 2006 who took a photo of an iceberg in the Patagonia ice fields. This begs the question:

IMG_20151021_081928

Center for Art Law, Oct. 21, 2015.

IMG_20151021_081918

Center for Art Law, Oct. 21, 2015.

 

Can you have a successful claim for copyright infringement if the photo is not copied, but is nearly identical?

 

Almost from the time that photographs were considered copyrightable subject matter they were challenged in court. In Burrow-Giles Lithographic Co. v. Sarony, the defendants argued that photographs were neither writings (as specified in Article 1, Section 8 of the United States Constitution) nor works of authorship since they involved a mechanical process. The Court upheld the copyrightability of photographs and concluded that they were both writings and works of authorship. For purposes of the Copyright Act, anyone deemed an “author” of a photograph is able to sue for infringement under Section 501. “Whether a particular photograph has been infringed will, of course, be determined by the ordinary substantial similarity test, tempered by the fact that a photographer may not obtain exclusive rights over the object depicted—ruling out any claim of infringement when another photographer reshoots the same object or scene without copying plaintiff’s originality over the mood evoked by the photograph or a scenes a faire.” The court in Leigh v. Warner Bros., Inc. noted that there is a relatively narrow scope of protection for photographers who takes images of natural objects and scenes. Often, photographers make the claim that they are responsible for the “mood” of a particular photograph, which includes lighting, shading, timing, angle, etc. For example, in the case of Sahuc v. Tucker, plaintiff claimed that defendant infringed upon plaintiff’s copyright. The photographs at issue involved the famous St. Louis Cathedral in New Orleans shrouded in mist and taken from the same angle. The court noted that although plaintiff made a valid effort to show that the two photos were identical, slight variations of the photographs lead to the conclusion that they were not substantially similar.

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Photograph by Marisol Ortiz Elfeldt, Nov. 6, 2006.

Photograph by Sarah Scurr, Nov. 6, 2006.

Photograph by Sarah Scurr, Nov. 6, 2006.

In the case of the photographs of the iceberg, it is clear that both of the photographers captured a different image and that the British student did not make a photocopy or reproduction of the other’s photograph. Furthermore, since it is a natural object, neither would be able to claim copyright on the iceberg itself. Therefore, a claim for copyright infringement would fail even though the images were nearly identical. To give protection to the photograph would open up a Pandora’s box of issues and would invite baseless lawsuits into court from people who claimed that someone else infringed their copyright. Even worse, it would force governments to make certain natural and man-made objects off-limits to photographs as some countries have done with their national treasures. Going forward, as long as a photographer doesn’t go to pains to recreate the “mood” of a particular scene, there should be no issues of copyright infringement. It is only in those rare circumstances that photographers have a viable copyright infringement claim.

Selected Sources:

About the Author: Loren Pani, a volunteer with Center for Art Law, recently graduated from Brooklyn Law School and is now working for the firm of Alter, Kendrick & Baron, LLP as a music copyright attorney (pending admission to the New York Bar).

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

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