Intellectual Property Law

New Matter SPRING 2014, Volume 39, Number 1

The Importance of Being Earnest: Obtaining Copyright Registrations for 20th Century U.S. and Non-U.S. Photo Collections

GREG VlCTOROFF

Greg Victoroff & Associates

In Burrow-Giles Lithographic Company v. Napoleon Sarony, the U.S. Supreme Court held it was within the constitutional power of Congress to extend copyright protection to photographs, specifically a photographic portrait of the infamous Victorian playwright, Oscar Wilde. Burrow-Giles argued photography was merely a mechanical process rather than an art, and could not embody an author’s "idea." The Court accepted that this may be true of "ordinary" photographs, but this was not in the case of Sarony’s image of Wilde. Sarony posed Wilde, suggested his expression and selected his costume, the background, and accessories to create a particular composition. Sarony’s control over the subject matter showed that he was the "author" of "an original work of art" over which the Constitution intended Congress to grant exclusive rights.

Today, photo collections by non-U.S. photographers such as Napoleon Sarony, but also works by photographic luminaries such as Henri Cartier-Bresson, Helmut Newton, Man Ray, and others, enjoy enhanced legal protection against infringements in the U.S. because they have certificates of copyright registration issued by the U.S. Copyright Office. This article describes how to ensure that your client’s photographs enjoy maximum legal protection by providing a detailed guide to U.S. Copyright Office rules and regulations pertaining to registering copyrights in U.S. and non-U.S. photographs using hypothetical and real-world examples.

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