Photo Attorney

Mar 16, 2008

Who Owns the Copyright to a Photograph of a Copyrighted Work?

As previously mentioned in this blog, photographing other copyrighted works may violate the copyright of others. Based on this, the Vietnam Women's Memorial Foundation ("VWMF") sued a company for selling refrigerator magnets with a photo of the Vietnam Women's Memorial statue in D.C. (review the complaint here and read a summary on my February 15, 2006, blog. The VWMF subsequently voluntarily dismissed the claim, reporting that the dispute had been settled. In another case, as reported in my June 8, 2007 blog, a photographer's book containing photographs of graffiti was pulled from the shelves.

Recently, an Illinois District Court held that Daniel Schrock of Dan Schrock Photography had no right to register his photographs of toys because they were unauthorized derivative works of the copyrights in the toys. Schrock was hired by Learning Curve Intern, Inc. ("LCI"), to shoot the toys for marketing uses. Alleging that LCI and others had used the photos beyond the license terms, Schrock sued for copyright infringement. But the Court agreed with the defendants that "without approval from the owner of the underlying [copyrighted] work, approval that was totally absent here, Schrock could not obtain a copyright over his derivative works."

The law in this area is confusing, given that some courts have held that "the authorship of the photographic work is entirely different and separate from the authorship of the sculpture." See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301 (S.D. N.Y. 2000) (finding that the photograph of Jeff Koons' "Puppy" sculpture merely depicted the sculpture; it did not recast, transform, or adapt Koons' sculptural authorship). The confusion began with the Ets-Hokin v. Skky Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000), where the court held that a photograph of a vodka bottle was not a derivative work only because the bottle was not copyrightable.

Attorneys William Patry (Senior Copyright Counsel, Google Inc., and considered by some to be the new "father" of copyright law - replacing Nimmer) and Nancy Wolff have excellent summaries and analyses of the Schrock decision. Fortunately, Schrock's attorney has reportedly filed an appeal and ASMP is working on an amicus brief and will seek support from other associations.

Here's hoping for the best with Schrock's appeal!