the claims, because each photographer selected the angle and positioning of his or her photograph, among other creative choices.
909.2 Subject Matter of Photographs
To be eligible for copyright protection, the subject of the photograph does not need to be copyrightable. A photograph may be protected by copyright and registered with the U.S. Copyright Office, even if the subject of the photograph is an item or scene that is uncopyrightable or in the public domain.
Example:
• Phoebe Pool takes a picture of a mountain range, selecting the angle, distance, and lighting for the picture. The registration specialist will register the work even though the mountain range itself is not copyrightable.
909.3 Photographic Reproductions, Digital Copying, and Editing
Although most photographs warrant copyright protection, the U.S. Copyright Office will not register photographs that do not display a sufficient amount of creative expression. A photograph that is merely a "slavish copy" of a painting, drawing, or other public domain or copyrighted work is not eligible for registration. The registration specialist will refuse a claim if it is clear that the photographer merely used the camera to copy the source work without adding any creative expression to the photo. Similarly, merely scanning and digitizing existing works does not contain a sufficient amount of creativity to warrant copyright protection.
Example:
• Pamela Patterson takes a high resolution picture of Leonardo da Vinci's Mona Lisa. She intends to create an exact replica of the painting, and the photograph is virtually identical to the painting. The registration specialist will refuse to register the photograph, because it is a slavish copy of a work that is in the public domain. See, e.g., Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 196-97 (S.D.N.Y. 1999].
The Office often receives applications to register preexisting works that have been restored to their original quality and character. Merely restoring a damaged or aged photograph to its original state without adding a sufficient amount of original, creative authorship does not warrant copyright protection.
The registration specialist will analyze on a case-by-case basis all claims in which the author used digital editing software to produce a derivative photograph or artwork. Typical technical alterations that do not warrant registration include aligning pages and columns; repairing faded print and visual content; and sharpening and balancing colors, tint, tone, and the like, even though the alterations may be highly skilled and may produce a valuable product. If an applicant asserts a claim in a restoration of or touchups to a preexisting work, the registration specialist generally will ask the
Chapter 900 : 20
12/22/2014
