Courts and commentators have lavished attention on the question of what makes a photograph original and entitled to copyright protection. Far less attention has been devoted to the issue of how photographs infringe. This is the first Article to systematically explore the different ways in which a photograph can steal intellectual property. Photographs can infringe in two ways: by replication and by imitation. A photograph infringes by replication when, without permission, a photographer points her camera directly at a copyright-protected work—a sculpture, a painting, another photograph—and clicks the shutter. A photograph can also infringe by imitation. In such cases, the plaintiff’s claim is that the infringing photograph imitates the creative expression in her own picture.
One type of photographic infringement by imitation has confounded courts, instances in which the plaintiff photographer stages a tableau before clicking the shutter—e.g., poses a person for a portrait or assembles fruit on a table for a still life—and the defendant imitates that tableau. Copyright law is clear that a photographer has a protected interest against others copying the tableau she staged for a picture. Nonetheless, many courts simply refuse to find infringement in such cases, even when the defendant admits to having imitated that tableau. Looking to the idea/expression dichotomy, these courts excise from consideration the staged tableau as the unprotected “idea” of the plaintiff’s photograph. Having cut the heart out of that image, they inevitably find the defendant’s photograph not to be infringing.
This Article argues that looking to the idea/expression dichotomy to ignore a plaintiff’s staged tableau not only renders a nullity of an entire category of protected photographs, but profoundly misunderstands where to locate a photograph’s “idea.” That idea exists not on the face of the image. Rather, it is the mental vision that a photographer hopes to capture in taking a picture. If she shares that vision with other photographers, they are free to try their hand at embodying that idea in a photograph with no fear of infringement. Once a photographer clicks the shutter, however, the resulting image is expression—entirely expression.
Courts and commentators have justified applying the idea/expression dichotomy to eviscerate photographs out of a concern for protecting the scope of creativity for downstream photographers. This Article proposes that the “thin copyright doctrine” can offer a much better approach to providing such protection. It proposes a “silver platter” principle for determining when a photograph should be entitled only to thin protection.
kogan, Terry S., "How Photographs Infringe" (2017). Utah Law Faculty Scholarship. 20.