There are two aspects to photographic copyright: photographs may be protected by copyright, but may also infringe copyright. A photograph of a painting could infringe the copyright in the painting, and a photograph of a photograph could likewise infringe. That much is well-known to most photographers.
The position with respect to photographs of other artefacts – buildings, sculptures, designs and products – is less well understood. It is less well understood because it is less straightforward. However, it is clear that in some cases such photographs will infringe. Section 17(3) of the Copyright Designs and Patents Act 1988 specifically provides that, in relation to an artistic work, copying includes the making of a copy in two dimensions of a three-dimensional work.
In this post I’ll try to clarify the main issues, looking specifically at photographs of products, and at the implications of English copyright law for product photography.
Before launching into a discussion of the law, I’d like to make one practical point, a point that mitigates the risks associated with some kinds of product photography.
If you are selling products, then more often than not the owner of any copyright in the products will benefit from you selling them, and will be unlikely to complain of any technical copyright infringement. The rest of what follows should be read with this in mind.
How copyright protects products
Not all products will be protected by copyright; in some cases only part of a product will be protected; in others there will be no copyright protection. So, how should you go about assessing what is protected?
Copyright protects defined classes of “work”. The first question to ask is this: does the product or any part of the product fall within one of the defined classes?
Some products will be protected as “original artistic works”.
The originality requirement is a modest one, meaning not copied and implying that some skill, labour or effort has been put into the creation of the artistic work. Originality does not require genius, brilliance or even talent on the part of the creator.
There are three relevant categories of artistic work:
- graphic works
- works of artistic craftsmanship
Different products will fall within different categories, so I shall look at each in turn.
Under Section 4(2) of the CDPA, “graphic work” includes any painting, drawing, diagram, map, chart or plan, and any etching, lithograph, woodcut or similar work. Graphic works are protected irrespective of their artistic quality.
Clearly, some products will constitute or contain graphic works. For example, if a product is a map, it is a graphic work. Many other products will incorporate graphic works as surface decoration. For example, a image used on a t-shirt could be protected as a graphic work. The packaging of many products will also incorporate graphic works.
The case law concerning what is and is not a sculpture is not as consistent or helpful as one might wish. Moulds for sandwich toasters and prototype frisbees have in the past been found to constitute sculptures. The most important case of recent years concerned Star Wars; specifically, it concerned copyright the Imperial Stormtrooper helmets from the first Star Wars film. The Supreme Court, following the Court of Appeal and Mr Justice Mann at first instance, found that the helmets were not protected as sculptures.
In his judgment, Mr Justice Mann set out some useful guidelines for determining what is and is not a sculpture. The matters to consider (paraphrased by me to some extent) are:
- The normal use of the word “sculpture”.
- That the concept of a sculpture can be applicable to things going beyond “art”, to things that one would not expect to find in an art gallery.
- It is inappropriate to stray too far from what would normally be regarded as sculpture.
- No judgment is to be made about artistic worth.
- Not every three dimensional representation of a concept can be regarded as a sculpture.
- It is of the essence of a sculpture that it should have, as part of its purpose, a visual appeal in the sense that it might be enjoyed for that purpose alone, whether or not it might have another purpose as well. The purpose is that of the creator.
- The fact that the object has some other use does not necessarily disqualify it from being a sculpture.
- A pile of bricks, temporarily on display at the Tate Modern for 2 weeks, is plainly capable of being a sculpture. The identical pile of bricks dumped preparatory to a building project is equally plainly not. The difference is in the purpose of creation.
- The process of fabrication is relevant but not determinative.
Applying these guidelines, most products will not be sculptures, but some will. Clearly, a figurine may be a sculpture; equally clearly, a car will not, no matter how lovely its bodywork.
If a work is not a sculpture, it may still qualify for copyright protection as a work of artistic craftsmanship. The types of product that may fall into this category include “handicrafted jewellery tiles, pots, stained-glass windows, wrought-iron gates, hand-knitted jumpers, and crocheted doilies” (Bentley and Sherman summarising the case law in Intellectual Property Law (Second Edition) p74).
Unlike most types of copyright works, the courts must adjudge a product as “artistic” before awarding protection under this heading.
In the most influential case on the question, Henscher v Restawile Upholstery, a prototype of a chair was found not to be artistic, and was therefore unworthy of protection. However, different judges have different views about what is or is not artistic, and the cases following Henscher are not always helpful.
Finally, it is helpful to draw a distinction between direct and indirect protection. The design of a product may be protected by copyright directly, or indirectly through the design drawings for the product, which may themselves be protected as graphic or literary works. Design drawings are protected irrespective of artistic merit, and many designs which do not benefit from direct copyright protection will benefit from this kind of indirect protection.
There’s a problem here: a photographer will rarely know whether a particular product was designed by means of drawings. At first glance, it looks like indirect protection may render most product photography unlawful – or at least potentially unlawful.
If there’s a hero in this story, it is Section 51 of the CDPA, which provides that
(1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.
(2) Nor is it an infringement of the copyright to issue to the public, or include in a film or communicate to the public, anything the making of which was, by virtue of subsection (1), not an infringement of that copyright.
(3) In this section – ‘design’ means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article, other than surface decoration; and ‘design document’ means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise.
This provides a general exclusion from liability in respect of photographs of “designs” other than “artistic works”. So, if a product or part thereof is not protected by copyright as a graphic work, work of sculpture, or work of artistic craftsmanship, photographs of that product will usually not infringe copyright, even if the design drawings for the product are protected by copyright.
Moreover, if the taking of the photographs does not infringe, nor will their distribution whether in physical form or via the internet (subject of course to the position in other jurisdictions).
Copyright duration and Section 52
Copyright lasts a long time. In the standard case, copyright in an artistic work expires at the end of the period of 70 years from the end of the year in which the author of that work dies.
There are two problems here:
- first, most products around today that are protected by copyright will continue to be protected for a long time to come; and
- second, it may be difficult or impossible to discover when the “author” of an older product died, leaving you uncertain whether copyright applies.
This is where Section 52 comes in. The first two sub-sections say:
(1) This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by – (a) making by an industrial process articles falling to be
treated for the purposes of this Part as copies of the work, and (b) marketing such articles, in the United Kingdom or elsewhere.
(2) After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.
So, where a product has been made by an industrial process and marketed, then after 25 years it can be copied “by making articles of any description” and doing things “in relation to articles so made”.
Is a photograph an article? The answer to that question is unclear. One the one hand, it would seem irrational that a product could be copied in its entirety but not photographed. On the other hand, a printed image wouldn’t usually be referred to as an “article” – and a digital image would never be so described.
Substantiality and incidental inclusion
There are two other ways in which a photograph of a product may escape liability, notwithstanding that the product may be protected by copyright in a relevant way.
First, a photograph will not infringe where it does not copy a “substantial part” of the design. Substantiality is assessed in both a quantitative and a qualitative way, so a small part of a work may still be a substantial part for the purposes of the law. Where copyright protects the design as a sculpture or work of artistic craftsmanship (rather than as a graphic work) it may be easier to argue that the photograph does not copy a substantial part of the original design. I’m not aware of any case law on this point – which is not to say that there isn’t any.
Second, there is a general defence under the CDPA in relation to the incidental inclusion of a work in an artistic work:
(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast.
(2) Nor is the copyright infringed by the issue to the public of copies, or the playing, showing or communication to the public, of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.
Where a product just happens to be in a photograph, this defence may apply.
Licences, express and implied
If you have the express permission of the copyright owner to photograph the product, then you will not infringe the copyright.
In some cases it may be possible to imply a licence to photograph – for example if the products are supplied to a seller by the copyright owner with the expectation that they will be sold online with accompanying images, and the only way to get such images is to photograph the product.
Some product photographs will infringe copyright in the product. Others will not. It is difficult to make any general statements, and the risks in relation to each photographed product should be individually assessed. However, there are many potential uncertainties, both factual and legal:
- Is the product a graphic work, sculpture or work of artistic craftsmanship?
- Does the product incorporate such a work?
- Are there any antecedent design drawings or prototypes, the copyright in which could be infringed by a photograph?
- Is the work sufficiently original to warrant protection?
- Has the product been reproduced by an industrial process?
- When did the “author” of the work die?
- Does the photograph copy a substantial part of the relevant work?
- Is there an implied licence to photograph?
So, even a careful and conscientious assessment might not lead to a confident conclusion.
Notwithstanding the potential uncertainties, there will be many clear cases, although I think a list of categories could be misleading. The most obvious risks, I think, are associated with products that consist of or contain graphic works. There are several reasons for this:
- many products are graphic works or contain graphic works (whereas relatively few will be classified as sculptures or works of artistic craftsmanship);
- the photography of graphic works (engravings excepted) involves 2D to 2D copying; and
- graphic works are artistic works, and photographs of them will therefore not benefit from the protection of Section 51.
Where there is uncertainty and a real risk of a complaint, the most sensible course would be to obtain the permission of the copyright owner before taking and using the photographs.
If you have any questions about this legal tangle, you are welcome to post them below or on our legal Q&A system, and I’ll try to answer them.
NB: Other areas of law may also affect product photography. For instance, this post does not cover the effects of design law or the law of confidence on product photography.