Last week, the Serbian Parliament unanimously voted down a proposal to abolish copyright protection in that country for what it called “routinely made” digital photography. In fact, according to the Facebook page Protect Photographers Copyright, even the individual member of Serbia’s ruling Progressive Party, Dusica Stojakovic, who introduced the measure, did not vote for it herself.  This was the second time the proposal to abolish these rights has come up for a vote and was defeated; but professional photographers, especially photojournalists, say the idea is not dead and the fight is not over.

The strangeness of this proposal, particularly coming from the party leading Serbia’s fledgling democracy, is a bit hard to fathom.  After all, the potential of disenfranchising professional photojournalists while leading democratic reform is entirely inconsistent with the stated agenda of the party—not to mention the history of democratic reform.  And in fact, this story by Bogdan Ivanisevic, writing for Balkan Insight, states:

“Abolition of copyright in photographs tout court is not what the ruling Serbian Progressive Party and its partners ever intended.

What they aimed for was to abolish copyright for a subgroup of photographs, those “routinely created” as the proposed text phrased it.

That said, had the ruling majority adopted the text as formulated by parliament’s legal committee, it would have been troubling.”

So, without being Belgrade insiders, we might interpret these events as an attempt to fashion a legal distinction between the professional class of photos and the millions of selfies and snapshots uploaded to the Internet.  And presumably, the professional photographers who have protested this measure agree with Ivanisevic in identifying as “troubling” the overly broad language in the party’s measure, which is stated thus:

“Every routinely made photograph, which appears and is taken in electronic form, regardless of whether it is the true original creation of an author, will cease to enjoy protection as the creation of an author.”

Copyright laws in Europe vary with regard to granting protection to “non-original” photographs, which is to say the courts have differing means of interpreting “originality” in a legal sense. But it is beyond problematic to attempt to make these distinctions at the legislative level. The “amateur” is more than capable of taking a highly original photograph; she may turn professional or take a handful of pictures of great artistic value without necessarily considering herself a “photographer”.  Are the early snapshots of a great artist of no value because they’re not his “serious” works?  What about iconic and invaluable serendipity like the 8mm film of John F. Kennedy’s assassination captured by a tourist named Abraham Zapruder?

Copyright skeptics will answer many of these questions with abolishment or abridgment of copyright protection for all images.  This seems particularly true today in reaction to the ubiquity of images captured and uploaded every second to various web platforms; and this thinking appears to be a factor in Serbia’s Progressive Party as well. But if we look at the history of photography in the US, as well as about 150 years worth of legal theory on the copyrightability of the photograph, the increase in volume of what we might call “casually made” images does not really change the calculus all that much.  In fact, while the US has a very low standard of “originality” in copyright, both the theory behind that rationale and the practical applications of enforcement generally conform to common and reasonable distinctions between “original” and “non-original” photographs.

While it may seem to a casual observer that the question of copyright in the photograph is different today than in pre-Internet times, the truth is that both the theoretical and practical questions currently summon the same discussions as when the medium was first invented. It is common to say that photography—along with just about everything else—has been “democratized” by digital technology; and from this generalization comes the notion that it seems absurd to contemplate a copyright in every one of the billions of images that travel from smart phones to Web servers around the world every hour.  And as a matter of practical application, it is absurd to imagine a copyright in every one of these images, but it is also fortunately not necessary.

For starters, the process of making photos was democratized at least ninety years before the availability of the first personal computer. In 1888, the Eastman Dry Plate and Film Co. introduced the Kodak camera, which they advertised as “The only camera anybody can use without instructions.” And by the early 1970s, if you were me as a child stuck watching your grandfather’s vacation slides, you knew for certain that the Eastman/Kodak company had more than surpassed its goal of democratizing the photographic process. In fact, we can safely assume that, even by the 1950s, there must have been billions of images processed by millions of non-professional photographers all over the world. So, while it may be true that innovations like the smart phone have surely increased the number of images captured by every man, woman, child, and monkey, there was already a staggering volume of “amateur” photos in the world long before the inventors of Instagram were even born.

Moreover, the expansiveness of digital imaging can be somewhat exaggerated as a  justification for devaluing the photograph on principle, particularly when there is a corresponding disposability or invisibility that comes with digital diffusion of casually-made images.  The same technology that makes capture and upload so easy also makes the majority of these experiences fleeting for both makers and viewers. Still, what is unquestionably different today is the ability, in principle, for everyone’s proverbial grandfather to show his vacation photos to the entire world; but this fact alone does not inherently change the conversation about copyrights in photography from either a theoretical or a practical perspective.

The Copyrightability of the Photograph

Almost from the invention of the process, debate began among critics, connoisseurs, and artists as to whether the photograph was in any way a creatively expressive medium or merely a mechanical means for recording data.  And this dichotomy still manifests in the words of photo teachers everywhere, when they ask new students,  What makes a great photograph? It is not by coincidence that this same aesthetic discussion parallels the legal questions of copyrightability; and this is one reason why photography was so influential in the history of copyright law. For the first time, anybody with comparatively little training could make an image, and so grappling with the technology itself helped reshape copyright law for the modern age.  But it is also not farfetched to think that the copyright considerations themselves helped to shape the evolution of photography as well.

Loyola Law School professor Justin Hughes explores these ideas in detail in his paper The Photographer’s Copyright, published in 2012 in the Harvard Journal of Law & Technology.  He explains that from the time photographs were protected under copyright (1865 in the US), judges had to wrestle with more or less the same ideas, theories, and biases as art critics in order to consider what, if anything, makes one of these machine-made images an original work of authorship.

Today, with decades of tradition behind us, we generally recognize that a photograph can be either an expressive work or a mechanical record or both; but in early efforts to identify the hand of the author (i.e. what qualities make a photograph copyrightable), jurisprudence leaned first in the direction of giving weight to the photographer’s process and later in the direction of evaluating the end product, regardless of how the image was made.  The chronology of this thought process is due to the fact that the first case to come to the Supreme Court in 1884—which involved the infringement of a studio portrait of Oscar Wilde made by Napoleon Sarony—forced the Court to seriously consider the defendant’s argument that photographs should not be copyrightable at all. Thus, their analysis of the image known as Oscar Wilde No.18 focused on the specific choices made by Sarony in the studio in order to capture a brief moment of reality.

This identifying “originality” (in the legal sense) by examining the process of the photographer can be objectively expedient when the choices made by the author are readily apparent, as would be the case with a contemporary fashion photograph made with models, props, lighting effects, etc.  But this line of analysis becomes more problematic when considering a photograph of a documentary nature, like a landscape, street photograph, or the work of photojournalism—all examples in which the photographer cannot possibly control many of the elements that constitute the resulting image.  Furthermore, as Hughes discusses, these documentary images must also be compared and contrasted with photographs that are purely mechanical and/or made for the sole purpose of recording data—like surveillance imagery, mapping, or evidence.

For instance, what is the difference between the evidence-gathering photography of a police officer investigating a homicide in 1941 and one of the now-famous photographs taken by Wegee (Arthur Fellig) at the same crime scene? No doubt, many people can answer that question from an artistic perspective, but in reviewing the legal theory from the 1860s to the present, Hughes describes judicial views that sound not unlike those of the art or cultural critic. In other words, the features that make Wegee’s photo more expressive and more engaging than the photos taken by the detective also happen to make it more copyrightable. Hughes notes this subjectivity when he writes, “Where we think it is fair to offer legal protection, we will be more likely to find copyright sustaining originality.”

Hughes reports that in 1903, Justice Holmes introduced the notion of personality to the discussion in the case Bleistein v Donaldson Lithographing Co. This is the moment when copyright law becomes as universally available as photography itself.  Hughes writes, “Bleistein provided American law with an originality threshold low enough that all can enter, giving us a deeply egalitarian, democratic copyright law that has neither place nor need for the creative genius.”   From this notion comes the idea of “seepage”, which is used by copyright scholars to describe the notion that even when multiple individuals engage in the same creative action (e.g. tourists taking pictures of a national monument), that each individual cannot help but imbue her own images with her personality—that the individual’s character seeps into the work.

This low threshold of originality might appear to invite the aforementioned absurdity of billions of copyrights in billions of mediocre images, but not quite. Because concurrent with this egalitarian approach to originality for broad protection under copyright comes an equally thin patina of analysis as to precisely what may be copyrightable within a specific image, and in what contexts.  From the analyses applied in specific cases, we learn that there can be considerable similarity between two images, both of which can have a copyright, and neither of which necessarily infringes upon the other. These analyses can factor greatly in a specific case—particularly if it’s creator v creator—but for the broader question of copyrightability, it was first sufficient that the author asserted originality, and then after 1976, that photographs would be entitled to the same automatic copyright as all other works

This brings us to a practical reason why the Serbian proposal is so unnecessary—at least insofar as its Parliament might look to US copyright law for guidance–and this is the matter of registration.  Because while it is true that every US citizen who snaps a photo does have an automatic copyright in that image, this is functionally irrelevant in most cases unless the individual registers the image with the Copyright Office.  This is due to the financial realities of litigating an infringement claim in federal court.  If an image is registered, the rights holder may seek statutory damages for infringement, which is essential because proving actual damages from a use is a much more challenging legal argument to present.

So, unless the image owner has the resources to spend in an effort to prove actual damages in an infringement case—this by the way implies that photography is probably his/her profession—the inability to claim statutory damages (due to non-registration) is a barrier to engaging a litigator to pursue a case at all.  Hence, while there may be billions of non-professional images out there, even very good ones, there are likewise billions of reasons these will not be registered in jurisdictions in which an infringement claim is feasible.  Moreover, simply by choosing to upload personal pictures to certain platforms, the photographer cedes considerable—if not all—grounds for an ownership claim in the image as stated in some Terms of Service.  If anything, the new realities of the digital age ought to give “amateur” image makers a moment’s pause to consider the implications and rights associated with the photos they share rather than going the other direction of abandoning IP rights as obsolete.

Rather than rephrase the Serbian proposal—particularly if it is a reaction to digital ubiquity—the Progressive Party should abandon the idea that it is necessary, possible, or democratic to attempt to define at the legislative level “originality” in photographic works. The US has automatic copyrights, a low threshold of originality, trillions of “amateur” photographs, a vibrant professional, art, and journalism class of photographers; and our courts are not overrun with infringement cases in these works. For the sake of free expression, for journalism, and for economic development, the Serbian Parliament should affirm a copyright in all photographs and let their courts settle actual disputes.