Gennady Uvarkin, CEO of the Legal Bureau Omega, PhD in Law, and Victoria Nagrodskaya, Senior Legal Consultant, PhD in Law, prepared comments on the "Issues related to the definition of criteria for creative activity on the example of photographic works" in the Journal of the Intellectual Property Court.
We publish our comments on the most difficult questions:
1. What circumstances can be taken into account when analyzing the protectability of photographic works? Under what circumstances can we assume that the creative abilities of the author were realized when creating the photo, and his personality is reflected in the photo?
To analyze the protectability of photographic works it is necessary to evaluate the creative contribution of the photographer. Such a creative contribution can be related both to the technical actions of the photographer (for example, adjusting the sharpness of the frame, selecting light filters, choosing an entourage, locations, shooting angle, etc.), and to his own actions to manipulate a photo recorded on a material medium for the purposes of its subsequent use. Therefore, two objects of legal protection will be created: the first one is directly recorded on the camera, and the second one is further captured and processed on the appropriate photo editors. As an example of a creative contribution, the extensive work of photographers for fashion photoshoots can be given, in which the photo obtained in the process of creation and processing will become a real work of art.
It is important for courts to establish the actual will of the person and the actual circumstances associated with the photographing process. It is also important to take into account the professional level of the photographer, as well as evaluate the composition as a whole.
Thus, it is important to talk about whether the photographer has a goal to create a photographic work that has a creative character, and whether the photographer has his own actions to achieve this goal.
2. Does the protection of photographs as objects of copyright depend on the purpose and moment of their creation, on the object and means of shooting?
We believe that the protection capacity may depend on the purpose, the subject of the shooting and the moment of creation of the photo.
As an example of the presence of a unique creative component in relation to the time of creation and the subject of the shooting, one can cite photographs from the exhibition "Primordial Russia" or unique photos selected by NationalGeographic. In this regard, it seems that the choice of the moment of shooting and the object of shooting are extremely important components for assessing the protectability of a photo.
Regarding the means of shooting, it can be noted that if a photo is created using these means that doesn't have a creative character, then such photo won't be the object of copyright.
With regard to the question of features in relation to specific objects, it is possible to evaluate the same aspects described above. At the same time, photos obtained as part of medical examinations or created by public authorities have the lowest level of creativity, since the creation of such frames actually lacks the purpose of the photographer to create of an object of copyright.
3. How can I determine the number of copyright objects when creating photos in burst mode, when the specified photos have no visible differences / are almost identical, or when creating photos within the same creative process at the same time, in relation to one shooting object (for example, a product)?
It seems that determining the number of copyright objects when creating photographs in serial shooting mode is not paramount for resolving issues, since every created photo with a creative character will have a protective capacity, regardless of whether this series was large or small, until proven otherwise. However, it is obvious that if the photos have no visible differences or they are almost identical, the circumstances of fixing the frames themselves and preparing for shooting can be taken into account. If there was a specific shooting object, then the behavior of the model itself in the process of fixing such frames and its special selection of posture, mood, charisma, etc. are also important.
In relation to the creation of a photograph within the framework of one creative process at one time, in relation to one shooting object (for example, a product), we can talk about the photographer's focus on the result of the shooting or the so-called "source data" specified by the customer, which he requires in relation to photo for the implementation of his product advertising campaign. In this regard, the court may also take into account the requirements of the technical specifications regarding exactly how the frame should be made, focus, processing, parameters and other characteristics. It is necessary to take into account the attitude of the photographer himself to a particular photo.
Click on the link to read the full text: http://ipcmagazine.ru/jurnal/journal_062024.pdf
We publish our comments on the most difficult questions:
1. What circumstances can be taken into account when analyzing the protectability of photographic works? Under what circumstances can we assume that the creative abilities of the author were realized when creating the photo, and his personality is reflected in the photo?
To analyze the protectability of photographic works it is necessary to evaluate the creative contribution of the photographer. Such a creative contribution can be related both to the technical actions of the photographer (for example, adjusting the sharpness of the frame, selecting light filters, choosing an entourage, locations, shooting angle, etc.), and to his own actions to manipulate a photo recorded on a material medium for the purposes of its subsequent use. Therefore, two objects of legal protection will be created: the first one is directly recorded on the camera, and the second one is further captured and processed on the appropriate photo editors. As an example of a creative contribution, the extensive work of photographers for fashion photoshoots can be given, in which the photo obtained in the process of creation and processing will become a real work of art.
It is important for courts to establish the actual will of the person and the actual circumstances associated with the photographing process. It is also important to take into account the professional level of the photographer, as well as evaluate the composition as a whole.
Thus, it is important to talk about whether the photographer has a goal to create a photographic work that has a creative character, and whether the photographer has his own actions to achieve this goal.
2. Does the protection of photographs as objects of copyright depend on the purpose and moment of their creation, on the object and means of shooting?
We believe that the protection capacity may depend on the purpose, the subject of the shooting and the moment of creation of the photo.
As an example of the presence of a unique creative component in relation to the time of creation and the subject of the shooting, one can cite photographs from the exhibition "Primordial Russia" or unique photos selected by NationalGeographic. In this regard, it seems that the choice of the moment of shooting and the object of shooting are extremely important components for assessing the protectability of a photo.
Regarding the means of shooting, it can be noted that if a photo is created using these means that doesn't have a creative character, then such photo won't be the object of copyright.
With regard to the question of features in relation to specific objects, it is possible to evaluate the same aspects described above. At the same time, photos obtained as part of medical examinations or created by public authorities have the lowest level of creativity, since the creation of such frames actually lacks the purpose of the photographer to create of an object of copyright.
3. How can I determine the number of copyright objects when creating photos in burst mode, when the specified photos have no visible differences / are almost identical, or when creating photos within the same creative process at the same time, in relation to one shooting object (for example, a product)?
It seems that determining the number of copyright objects when creating photographs in serial shooting mode is not paramount for resolving issues, since every created photo with a creative character will have a protective capacity, regardless of whether this series was large or small, until proven otherwise. However, it is obvious that if the photos have no visible differences or they are almost identical, the circumstances of fixing the frames themselves and preparing for shooting can be taken into account. If there was a specific shooting object, then the behavior of the model itself in the process of fixing such frames and its special selection of posture, mood, charisma, etc. are also important.
In relation to the creation of a photograph within the framework of one creative process at one time, in relation to one shooting object (for example, a product), we can talk about the photographer's focus on the result of the shooting or the so-called "source data" specified by the customer, which he requires in relation to photo for the implementation of his product advertising campaign. In this regard, the court may also take into account the requirements of the technical specifications regarding exactly how the frame should be made, focus, processing, parameters and other characteristics. It is necessary to take into account the attitude of the photographer himself to a particular photo.
Click on the link to read the full text: http://ipcmagazine.ru/jurnal/journal_062024.pdf