The Enigma of Photography, Depiction, and Copyright Originality
Terry S. Kogan
ARTICLE

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Photography is an enigma. The features that distinguish it most from other art forms — the camera’s automatism and the photograph’s verisimilitude — have throughout its history also provided the basis for critics to claim that a photographer is not an artist nor the photograph a work of art. Because every photograph is the product of an automatic, mechanical device, critics argue that a photographer is a mere technician relegated to clicking a shutter button. Moreover, because every photograph displays an exact likeness of whatever happened to be sitting before the camera, critics consider that image to be a factual document devoid of creativity. Looking to the technology’s automatism and verisimilitude, modern legal skeptics have joined this chorus by arguing that most photographs are inevitably uncreative facts — in the words of one scholar, the “automated representation of reality” — and thereby undeserving of copyright protection.

This is the first Article to propose that borrowing the concept of depiction from art theory can shed considerable light on photographic originality. As a depiction, a photograph has what philosopher Richard Wollheim has described as “two folds.” The “first fold” refers to the design markings on the surface of the photographic paper. The “second fold” refers to the real world object or scene that a viewer perceives in those design markings. This Article’s fundamental thesis is that, for purposes of copyright law, a photograph’s originality inheres primarily in a photographer’s creative choices that result in the placement of surface design markings. In contrast, the object or scene that a viewer sees in a photograph rarely impacts the image’s originality. Accordingly, the claim by legal skeptics that most photographs are uncreative facts locates photographic originality in the wrong place — in the object or scene that a viewer sees in the picture (depiction’s second fold). If, instead, a photograph’s originality depends primarily on a photographer’s creative choices in placing surface design markings (depiction’s first fold), the attack on originality based on automatism and verisimilitude — on a photograph’s inevitably being an uncreative fact — collapses.

* Professor of Law, S.J. Quinney College of Law, University of Utah. B.A., 1971, Columbia College; B.Phil., 1973, Oxford University; J.D., 1976, Yale University.