(S.D.N.Y.2000) (considering “lay-out”, angles, lighting, and computer enhancements); Kisch v. Ammirati & Puris, 657 F.Supp. 380, 382 (S.D.N.Y.1987) (considering selection of lighting, shading, positioning, and timing).
The difficulty in identifying a common set of protectible elements may be attributable to the 19th century prejudice against the creation of works by mechanical means. This prejudice is rooted in unfounded suspicion that photographic equipment restricts creativity. See Patry at 252 (“As with other works created by technological means, protection for photographs has been hampered by superficial examination of the wide range of creative options available to the photographers.”)
The technical aspects of photography imbue the medium with almost limitless creative potential. For instance, the selection of a camera format governs the film size and ultimately the clarity of the negative. Lenses affect the perspective. Film can produce an array of visual effects. Selection of a fast shutter speed freezes motion while a slow speed blurs it. Filters alter color, brightness, focus and reflection. Even the strength of the developing solution can alter the grain of the negative.
The elements that combine to satisfy Feist’s minimal “spark of creativity” standard will necessarily vary depending on the photographer’s creative choices. The cumulative impact of these technical and artistic choices becomes manifest in renowned portraits, such as “Oscar Wilde 18.” The measure of originality becomes more difficult to gauge as one moves from sublime expression to simple reproduction.[1]
Originality analysis in this case begins with Lindner’s description of his creative process. Lindner carefully chose to use single light source with a “reflector to fill out the shadows” in order to “give a chiaroscuro effect that would wrap around the [the frames] and give [them] depth.” (Lindner Aff. ¶15.) He used this lighting technique because “copy lighting” would “wash out the shadows and impart a flat look.” (Lindner Aff. ¶15.) Lindner also employed artistic judgment in determining the amount of shadowing for each individual frame that would emphasize the detail without obscuring it. (Lindner ¶15.) Reflections in the mirrors also complicated the shoot and led to the creation of a “unique light design on a reflector that would appear in the mirror without showing any part of the room or [himself] in the mirror.” (Lindner Aff. ¶16.)
The digital reprints in defendants’ catalogue support Lindner’s assertion that he exercised significant aesthetic judgment. They show the detail in the carvings, the saturation of color and gilt, and the appearance of attractive and well-defined picture frames.
The affidavits by defendants’ photography experts do not rebut plaintiff’s substantial evidence concerning originality. Those affidavits declare that “there is nothing unusual in the camera Mr. Lindner used or in the film or exposure…” and that “the photographs reflect effort by Mr. Lindner, but certainly … no substantial originality in the manner in which they
- ↑ Courts often cite Time, Inc. v. Bernard Geis Assocs., 293 F.Supp. 130 (S.D.N.Y.1968), involving the Zapruder film of President Kennedy’s assassination, for the proposition that even newsworthy photographs taken by sheer happenstance are copyrightable. However, the Zapruder case was decided before Feist. More importantly, the Zapruder case involved the infringement of an audiovisual work by a photograph. The issue before the court was whether the film of Kennedy’s assassination was copyrightable. The copyrightability of an audiovisual work is analyzed in accord with the definition of audiovisual works in the Copyright Act. See Atari Games Corp. v. Oman, 979 F.2d 242, 244–45 (D.C.Cir.1992) (Ruth Bader Ginsburg, J.). This analysis is not altered by the fact that the audiovisual work is alleged to have been infringed by copying individual frames. Thus, the Zapruder case is not a proper point of reference in determining the copyrightability of a photograph.
