Photos are Creative Works

This isn’t the blog post I intended to write this week. I had a totally different topic in mind. So why am I postponing it for a week or two or possibly three? I found the perfect picture to use with it, but the photo is copyrighted by someone other than me. So Friday I sent a request for permission to use the photograph, and I’m deferring the post in the meantime.

But that makes this a good time to remind my readers—especially those with their own blogs—that the copyright laws apply to photos, too. And just because you can find it on the Internet doesn’t mean you have permission to use it.

The following post originally appeared on the Hoosier Ink website on October 25, 2012. I have made a few very minor edits.

Photos Are Creative Works

As with anything else, photographs must have some minimum creativity to enjoy copyright protection. But almost every photograph qualifies.*

Consider the above picture of Autumn colors, which I took in October 2012 at Crapo Park in Burlington, Iowa. I didn’t create the subject, nor did I stage the picture. But I did choose the camera settings and select the scene that filled the frame. I even get credit for being in the right place at the right time.

Then there’s the second picture, which I used in my September 27, 2012  Hoosier Ink post on art versus science. The posed subject may not look very creative, but the copyright laws say it is. The first holder has a candlestick in it to demonstrate its function, and the second is empty so the viewer can get a better idea of its design. All purposefully done to make a point.

Because both photos meet the standards for creativity, you can’t use either without my permission.

There is a distinction between natural subjects and posed pictures, however. I can stop you from using my photo of the leaves in Crapo Park, but I can’t prevent you from going there at the same time next year and taking your own photograph. With a posed picture, I can keep you from copying the pose as well as the actual photograph. That’s because the subject is also a result of my creativity.

As with my photographs, yours are also copyrighted. That’s a good thing.

Because it isn’t just our writing that is creative.

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*For an in-depth discussion of the elements that make a photograph creative, see Mannion v. Coors Brewing Co., 377 F.Supp.2d 244 (S.D.N.Y. 2005).