IP & Art

A photographic work refers to a work that expresses human emotions or thoughts through images called photographs. If so, how will these works be protected under the current law?

Below, the concept, requirements, and infringement requirements for these works will be reviewed, and further, a brief introduction to domestic and foreign judgment cases will be provided.

First, photographic works were recognized as one of literary and artistic works in 1948 during the process of the Berne Convention. However, there may be questions about whether a photograph will be recognized as a work in that it expresses the phenomenon as it is, unlike a painting. Furthermore, a more detailed examination is needed as to whether the extent to which an idea is an expression distinguished from an idea.

Since a photographic work is also one of works, originality or creativity must be present in order to be recognized as a work. In this regard, in the courts, if the individuality and creativity of the photographer are recognized in the process of selecting the subject, setting the composition, adjusting the direction and amount of light, camera angle, shutter speed, etc., and developing and printing, the individuality and creativity of the photographer It is recognized as a work as it is deemed that there is an originality or creativity.

Let's take a example in this regard. In the case of an ID photo, it is difficult to be recognized as a work unless there are special circumstances. In addition, if only a photo of a product is taken in the advertisement photo, it is not recognized as a work. However, even in this case, in the case of a photograph in which the product is individually arranged with other props, originality is recognized and protected as a photographic work.

And with respect to the infringement of copyright in photos, it is not much different from the case of general copyrighted works. That is, there must be a copyright, and the infringing work must use it unfairly based on the original photo work. And whether or not copyright is infringed is judged by 'substantial similarity'.

There is a point to note regarding the ‘substantial similarity’. This is because it is necessary to distinguish between the part corresponding to the idea and the part expressed in the photographic work to determine whether there is a substantial similarity in the part expressed. Even in the case of a copyright infringement lawsuit for a photo called 'Solseom', which is widely known to the general public, 'in the case of taking a photo of a natural phenomenon, after distinguishing which part is an idea and which part is the work in which it is expressed, the actual similarity is determined only for the part expressed. It should be reviewed'.

In the case of foreign precedents, it is necessary to pay attention to the matter of determining the practical similarity of each other by strictly separating ideas and expressions, even in the case of photos of cathedrals that look similar at first glance. That is, the exterior of the subject of the cathedral itself was regarded as an idea and its similarity was not taken as the basis for judging the actual similarity. This is because it was judged that there was no substantial similarity to each other by analyzing the color, shooting time, components, and key points in the photo individually. Therefore, in the case of photographic works, copyright infringement is not without its difficulties.

As another example, in the case of replicating a photo holding several puppies as it is and making it into a sculpture, it was recognized as copyright infringement because there was a substantial similarity. On the other hand, in a case in which a picture was drawn with reference to a part of a photograph of a woman's legs, in a case where a part of the picture was reproduced rather than all of the picture, it was judged that this is 'fair use and does not otherwise infringe copyright'.

And if the cave photos in the photo book are copied without permission and displayed for commercial purposes, it is natural that the right to copy and display is infringed. However, in regards to the display of the photographic work upside down, it was considered that this act violated the right to maintain identity. 

However, in the case of thumbnail photos, it is necessary to pay a special attention to the court ruling that it is made for the convenience of image search, and it is difficult to be recognized as a separate photo itself even if the thumbnail photo is enlarged, and therefore such thumbnail will not be regarded as the infringement on the copyright because it may fall into one of the categories of "fair use".