Copyright law is designed to protect creators and copyright is in the expression of ideas and not just the idea itself. It is also important to note that photographs and visual arts fall under the artistic creation category of rights protected under copyright.
Section 108 of the Nigerian Copyrights Act, 2022[1] defines “artistic work” to include, irrespective of artistic quality, any of the following works or similar works —
- paintings, drawings, etchings, lithographs, woodcuts, engravings and prints
- maps, plans and diagrams ;
- works of sculpture ;
- photographs not comprised in an audiovisual work ;
- works of architecture in the form of building models ; and
- works of artistic craftsmanship, including pictorial woven tissues and articles of applied handicraft ;
When you take a photograph, you automatically own the copyright in the image. When a visual artist creates an original work of art, he owns the copyright in the art work. This implies that an artist who creates original work and a photographer who snaps a picture have the exclusive right to reproduce the work, to create derivative works based on it, to distribute copies, and to display it in public as provided for in section 10 of the Nigerian Copyrights Act, 2022.
Photography and Copyright
Upon invention of the camera and development of the photography, the U.S. Supreme Court held that photographs should be protected by copyright law because they contained human authorship[2]. Over the years, various courts have upheld and affirmed the creative elements that make a photograph protectable, illustrating that most photographs meet the copyright law criteria of originality.
Copyright law does not protect ideas, facts, or concepts, but rather it protects the creative choices a photographer makes when capturing an image[3]. There are some protectable elements in a photograph that have been recognized by courts which include how photographers adjust lighting, direct their subjects to pose, dress, and makeup, create entire scenes, arrange props, find optimal camera angles, and make other compositional and directional decisions in order to express and convey different ideas, stories, feelings, and moments in the resulting photographs.In the case of Gentieu v Muller & Co[4],the court emphasized this point when it stated photographic elements copyrightable to include the photographer’s background, lights, positioning and timing.
On May 18, 2023, the U.S. Supreme Court issued its opinion in Andy Warhol Foundation v. Goldsmith[5], a case that was one of the more impactful decisions in recent memory for not only photographers but also for the entire creative community. The dispute in the case centered on Andy Warhol’s unauthorized use of photographer Lynn Goldsmith’s photograph of the musical artist Prince to create several silkscreen prints. The Warhol Foundation claimed that the use of Goldsmith’s photograph was highly “transformative” under the first factor of the fair use test. The Supreme Court appropriately reined in the “transformative” test by making clear that it is not controlling of a fair use analysis and doesn’t even control a factor one analysis.
It’s clear that from the Warhol case that photography copyright case have been important in the development of copyright law. It’s important to remember that all copyright cases have unique facts that influence a court’s decision. Thus, photographers should not assume that a result in any given case guarantees a similar result in another case. However, past cases are helpful guidance for photographers (and creators who incorporate existing photographs into their works) who want to know how copyright law applies in the photography context.
In December 2019, hoops star LeBron James posted a photo of himself to all of his social media accounts. The photo shows him dunking in a basketball game against the Miami Heat. The photo garners thousands of views and likes from his huge audience. The photo was taken by a sport photographer Steven Mitchell. Mitchell sued LeBron for posting the picture without first obtaining a license. As a sport photographer, Mitchell sells licenses to his photos which James did not obtain before posting the dunk photo to his social media accounts. This prompted a copyright infringement case filed by Mitchell in March 2020 claiming that James’ usage of the photo violates copyright rules. The suit names LeBron James as well as LRMR Ventures and Uninterrupted Digital Ventures, businesses which run his Facebook page, and asks for any money made off the post or $150,000 for each time James used the image. In response, James filed a countersuit where he is seeking at least $1 million and attorney fees, claiming that his use of the photo was a case of fair use.
In Blanch v Hooks[6], the Second Circuit found that artist Jeff Koons’ unauthorized use of Andrea Blanch’s fashion magazine photograph in a painting was transformative due to its use as “fodder for [Koons’] commentary on the social and aesthetic consequences of mass media.” By changing the photograph’s colors, background, medium, size, details, and the purpose and meaning of the photograph, as part of a painting for a German art gallery, the court found that Koons gave the Blanch photograph a new meaning and message. After finding that the Koons photograph was transformative, the court went on to find for Koons on the other fair use factors.
Visual Arts and Copyright
It is important for visual artists to know that copyright law protects the expression of ideas, facts, or commonplace elements, and not the ideas, facts, or commonplace elements themselves.
In the realm of visual arts, there are instances where common or natural elements play a significant role in the creation of an artwork. However, under the Copyright Act, certain elements such as basic geometric shapes (such as circles, ovals, spheres, triangles, etc.), simple variations of familiar symbols or designs, mere color schemes or color variations, typography or lettering, and naturally occurring materials (such as discovering and polishing a rock for display) are not eligible for copyright protection. Nonetheless, copyright law safeguards the expression of these non-protectable elements. These distinctions are elucidated through various copyright law doctrines, including the idea-expression dichotomy, merger doctrine, and the scènes à faire doctrine.
Visual Arts Copyright issues were illustrated in the case Satava v Lowry.[7] In that case, the Ninth Circuit Court of Appeals disagreed with the claims of a successful sculptor, Satava, who argued that his depiction of a jellyfish “with tendril-like tentacles or rounded bells,” in “bright colors,” or “swimming vertically” was protected by copyright law. The court held that these elements were instead typical qualities of jellyfishes found in nature and lacked sufficient originality to warrant copyright protection.
The court also discussed how the idea of producing a glass-in-glass jellyfish sculpture gave rise to only a few variations of expressions that would naturally follow from such a sculpture, like how it was natural for the depicted “jellyfish [to] “almost fill[] the entire volume” of the outer glass shroud, because such proportion is standard in glass-in-glass sculpture.” Where there are only a few ways to express a particular idea, here, being “clear glass [as] the most appropriate setting for an aquatic animal” and sculptures filling the glass as “standard,” the idea and expression merged, such that those expressions were not protectable.
At the same time, the court did note several elements in which Satava “made some copyrightable contributions: the distinctive curls of particular tendrils; the arrangement of certain hues; the unique shape of jellyfishes’ bells.” In doing so, the court recognized that a depiction of a natural object or fact may express the requisite minimal creativity for copyright protection. And despite holding “thin copyright protection” for Satava’s jellyfish sculptures, the court further noted that “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”
Visual artists should be mindful of the distinction between (protectable) expressions of ideas and (unprotectable) ideas[8], facts, or commonplace elements themselves. Copyright law does not protect naturally occurring, common, or “standard” elements in works of visual art, but it will protect a visual artist’s own depiction and expression of those unprotectable elements or a visual artist’s particular arrangement, selection, coordination of such elements[9].
Copyright Disputes between Photographers and Visual Artist
In Herbersham Plaintain Corp v Country Concepts[10], it was held that infringement may occur if a copyrightable work is reproduced in a different medium or dimension such as making a sketch out of a photograph,
In The Andy Warhol Foundation (AWF) v. Goldsmith[11] was undoubtedly one of the biggest photography copyright cases, as the U.S. Supreme Court clarified the muddy “transformative use” doctrine, putting it back into its proper place as a subfactor to be analyzed under the first fair use factor.
The background is as follows: In 1981, photographer Lynn Goldsmith licensed her portrait of the musician Prince to Vanity Fair as an artist reference. Vanity Fair then commissioned Andy Warhol to create a piece based on the photograph. However, without Goldsmith’s knowledge, Warhol also created the “Prince Series,” a series of silkscreen prints, using Goldsmith’s photograph. Goldsmith learned about the series in 2016, shortly after Prince’s death. Goldsmith then alerted AWF—the Prince Series’ copyright owner—alleging copyright infringement, and AWF sued Goldsmith in response, asking the court for a declaration of non-infringement based on fair use.
The district court ruled in favor of AWF on the fair use issue, relying largely on their conclusion that Warhol’s use of Goldsmith’s photograph was transformative because The Prince Series displays the musician as an “iconic, larger-than-life figure,” the court explained, whereas Goldsmith’s photograph portrays Prince as a “vulnerable human being.” Goldsmith appealed.
On appeal, the Second Circuit stated that the trial court misapplied the “transformative use” test. The court stressed that aesthetic changes to a protected work cannot by themselves constitute a transformative purpose weighing in favor of fair use. Rather, the secondary work must “reasonably be perceived as embodying an entirely distinct artistic purpose.” According to the court, the secondary work must also be more than an imposition of a new artist’s style on the original work, where the secondary work remains retaining the essential elements of, its source material.
AWF challenged the Second Circuit’s application of the transformative test in its petition for Supreme Court review. The question presented by AWF was: “Whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably derives from’ its source material (as the Second Circuit has held)?”
In May 2023, the Supreme Court held in a 7-2 opinion written by Justice Sonya Sotomayor, that the purpose and character of the AWF’s use of Goldsmith’s photograph in the licensed “Orange Prince” silkscreen to Condé Nast did not favor a fair use defense under the first fair use factor. The case is impactful for both photographers and the creative community as a whole as the high court had not fully discussed the application of the transformative use test to a traditional copyrighted work since Campbell v. Acuff Rose was decided over 25 years ago. We explain the takeaways from this important decision in a two part blog series (Part I and Part II), but the decision level-set an increasingly expansive fair use provision by making some crucial points:
- The Court reaffirmed a critical tenet of the fair use doctrine—that whether a use is transformative not only doesn’t control a fair use determination, but that it also doesn’t control a factor one analysis.
- The decision also reiterated that fair use is an objective inquiry, and that different meaning and message in assessing transformative use “cannot turn merely on the stated of perceived intent of the artist of the meaning or impression that a critic—for that matter, a judge—draws from the work.”
- Additionally, the Court explained that the degree of transformation required to meet the threshold of transformativeness under the fair use factor cannot be so broad that it encroaches upon the derivative right under Section 106 of the Copyright Act.
In conclusion, a work copied without distinguishable variation from a prior work, even though the duplication may require special skill, training, knowledge and independent judgment on the part of the copyright is not in itself sufficient.
[1] Nigerian Copyrights Act, 2022
[2] What Photographers Need to Know About Copyright Law by Copyright Alliance
[3] Ibid at 2
[4] US Court of Appeals for the Eighth Circuit – 881 F.2d 1082 (8th Cir. 1989)
[5] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 598 US (2023)
[6] Blanch v. Koons, 467 F.3d 244
[7] US Court of Appeals for the Ninth Circuit – 323 F.3d 805 (9th Cir. 2003)
[8] Copyright Cases Visual Artists Should Know: Part 1, Copyrightability by Justin Ross
[9] Ibid
[10] Herbersham Plaintain Corp v Country Concepts, 209 U.S.P.Q. 711 (N.D. Ga. 1980)
[11] Ibid at 5