tag:blogger.com,1999:blog-2941976044448685733.post74518483365458380..comments2023-06-20T13:09:56.441+01:00Comments on Art and Artifice: Originality or author's own intellectual creation? What is the legal test for copyright subsistence in photographs?Mollyhttp://www.blogger.com/profile/13355163599192206484noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-2941976044448685733.post-70314149323601582402015-03-03T20:40:48.775+00:002015-03-03T20:40:48.775+00:00I believe that the Intellectual Creation test is i...I believe that the Intellectual Creation test is in fact doing the opposite of harmonising the standard across Europe. By using a standard which has so much uncertainty the originality standard will now be less certain than ever before across Europe. <br /><br />The traditional common law standard brings with it much greater certainty and thus is far more advantageous!Rob Jnoreply@blogger.comtag:blogger.com,1999:blog-2941976044448685733.post-82164583898754615862012-02-02T15:03:54.954+00:002012-02-02T15:03:54.954+00:00For recent commentary on the protection of photogr...For recent commentary on the protection of photographs under French copyright law, see the 1709 blog here: http://the1709blog.blogspot.com/2012/02/protection-of-photographs-in-french.htmlRosie Burbidgehttps://www.blogger.com/profile/04620450399931331172noreply@blogger.comtag:blogger.com,1999:blog-2941976044448685733.post-44444415707035415042012-01-31T09:17:34.956+00:002012-01-31T09:17:34.956+00:00In French law, between 1957 and 1985 there was a r...In French law, between <a href="http://admi.net/jo/loi57-298.html" rel="nofollow">1957</a> and <a href="http://admi.net/jo/loi85-660.html" rel="nofollow">1985</a> there was a requirement that photographs had a "caractère artistique ou documentaire". <br /><br />This is interesting as it demonstrates something of the way French law has evolved in dealing with photographic copyright. It is not (as one might think) a particularly live issue because of the Court of Cassation's view that "en matière de propriété industrielle, la loi qui a vocation à s'appliquer est celle qui est en vigueur à la date de l'acte qui provoque la mise en oeuvre de la protection légale". In other words, what matters is the law in force at the time of the action for infringement.<br /><br />As I understand it - and I have not read as widely as I would like - the threshold in France is "originalité", which is usually understood as being available at 3 times: (1) in the preparation of the scene; (2) in the choice of angle etc in taking the photograph and (3) in the post-processing of the photograph such as by colourisation.<br /><br />It would be interesting to analyse some of the cases to see when (if ever) French and English law have come to different conclusions.Francis Daveyhttps://www.blogger.com/profile/10228026893626221724noreply@blogger.comtag:blogger.com,1999:blog-2941976044448685733.post-20129802049118968862012-01-31T08:56:31.716+00:002012-01-31T08:56:31.716+00:00I'm flattered by having a comment described as...I'm flattered by having a comment described as "insightful". <br /><br />One difficulty in this discussion is that we don't know - in the sense that the question has not been well addressed by authority - what "original" means in the context of photographs. <br /><br />For example: one object of protection might be "right place, right time" accidental creation, whereby someone unskilled (perhaps even a simian...) takes a photograph. It has always been thought that would count as an "original" photograph, but the question has never been precisely tested. <br /><br />One can think of policy arguments in favour of rewarding photographers who incurred expense and took risks obtaining a photograph. Exactly those arguments were deployed in the debates on the Fine Arts Copyright Bill when copyright protection for photographs was first suggested (a sample follows):<br /><br /><br /><b>THE SOLICITOR GENERAL</b> observed, that although, strictly and technically speaking, a photograph was not in one sense to be treated as a work of fine art, yet very considerable expense was frequently incurred in obtaining good photographs. Persons had gone to foreign countries—to the Crimea, Syria, and Egypt—for the purpose of obtaining a valuable series of photographs, and bad thus entailed upon themselves a large expenditure of time, labour, and money. Was it just that the moment they returned home other persons should be allowed, by obtaining negatives from their positives, to enrich themselves at their expense? He could not consent to exclude photographs from the Bill.<br /><br /><b>MR. HENNESSY</b> suggested, that at all events photographic portraits should be excluded. A visit to the Holy Land was not necessary for taking the portrait of the hon. and learned Gentleman, and yet it would be hard to prevent the public from obtaining a copy of his likeness.<br /><br /><br />But I can't recall of a case where that kind of originality was in issue. <br /><br />It is quite unusual for courts to reject originality of photographs and, again as far as I can remember, the only clear examples are copies of earlier works such as the photocopy in Reject Shop v Manners.<br /><br />The question is further compounded by a relatively small number of ECJ cases on the European threshold - we really only have Painer on photographs. <br /><br />So, I am not absolutely confident that originality as we understood it is the same as "own intellectual creation" as the ECJ is coming to understand it. I am very glad the question is being aired.Francis Daveyhttps://www.blogger.com/profile/10228026893626221724noreply@blogger.com