ABSTRACT
The duality of photographs—as both a creative expression and a record of the real—shapes the complexity of the degree to which copyright protection applies. Proper application of copyright law to photography requires nuance, subtlety, and some legerdemain about “originality” that usually accrues to the benefit of photographers. This chapter explains when photographs are protected by copyright and what that protection practically means for different genres of photography. Many decisions come down to the elusive “originality” that can justify copyright in a photograph. Both lay people and lawyers frequently lose sight of this and assume that there is copyright in all photographs, but the truth is more complex. There are many photographs that will have robust copyright protection, especially those where the photographer has constructed the scene to be photographed. Other works, including some iconic twentieth-century photography, may have “thinner” copyright protection that essentially protects them against unauthorized reprographic reproduction and little else. Finally, today it is possible that most of the world’s photographs and video—made only to record information—should not qualify for copyright protection at all.
