Photographs and visual art occupy a unique and often misunderstood place in copyright law. Many people mistakenly believe that photographs found online are free to use or that taking a picture of a copyrighted artwork creates a new copyright for the photographer. The law is more nuanced and more protective of visual creators’ rights than these misconceptions suggest. Copyright for photographs and visual arts is a rich and complex area, with specific rules about what is protected, who owns the rights, and how to register and enforce them. PerspireIP helps photographers, artists, galleries, and businesses navigate visual arts copyright to protect their creative investments.
Are Photographs Protected by Copyright?
Yes, photographs are protected by copyright from the moment of creation, provided they meet the minimal originality requirement. Courts have held that even routine photographs meet this threshold because the photographer makes creative choices about framing, lighting, timing, angle, depth of field, and subject selection that reflect at least some degree of creativity. The Supreme Court established in Burrow-Giles Lithographic Co. v. Sarony (1884) that photographs can be copyrightable works of art. More recently, courts have grappled with the degree of originality required, generally finding that almost any photograph made with intentional creative choices is protectable.
Copyright in Different Types of Visual Works
- Photographs: Protected as pictorial or graphic works; both artistic and commercial photography qualifies
- Paintings and drawings: Protected as pictorial or graphic works; the protection extends to both fine art and commercial illustration
- Sculptures: Protected as sculptural works; three-dimensional works including decorative objects may also qualify
- Architectural works: Buildings constructed after December 1, 1990 are protected; the overall form and design elements are protectable
- Graphic design: Logos, illustrations, and other graphic designs are protected as pictorial or graphic works if they reflect creative expression beyond purely functional or geometric elements
- Digital art and computer-generated images: Protected when created with sufficient human creative input
What Copyright Does Not Protect in Visual Art
Copyright for photographs and visual art does not extend to every element of a visual work. Copyright does not protect the style or manner of artistic expression, as opposed to the specific expression itself. It does not protect ideas, natural scenes or facts depicted, or the subject matter of a photograph. Photographing a building on a public street does not infringe the building owner’s copyright because buildings in public view can be freely photographed and depicted under the Architectural Works Copyright Protection Act. Merely pointing a camera at something does not create copyright infringement even if the subject is copyrighted, provided the photograph is not a copy of a two-dimensional copyrighted work.
Photographs of Copyrighted Artworks
A particularly important issue is whether photographing a copyrighted painting or sculpture creates a new copyright for the photographer. The landmark case Bridgeman Art Library v. Corel Corp held that exact photographic reproductions of public domain two-dimensional artworks lack sufficient originality to support a new copyright claim. The court reasoned that the photographer’s goal in such cases is to produce an exact copy, not an original work, so there is no creative expression to protect. This principle means that faithful photographic reproductions of public domain paintings are themselves in the public domain, even if the photographer invested significant effort in creating them.
Registering Copyright for Photographs
Individual photograph copyright registration through the standard Copyright Office process can be expensive and time-consuming for photographers who produce large volumes of images. The Copyright Office offers group registration options specifically for photographers. Photographers can register groups of unpublished photographs and groups of published photographs using streamlined procedures that significantly reduce the cost and administrative burden of registration. Group registration for photographs published in the same calendar year is available online and allows photographers to register unlimited photographs for a single filing fee. PerspireIP helps photographers develop registration programs that provide comprehensive coverage at manageable cost.
Stock Photography and Licensing
The stock photography industry illustrates copyright for photographs in commercial practice. Stock agencies like Getty Images, Shutterstock, and Adobe Stock license photographs to users for specified purposes, charging fees based on the scope of use. Rights-managed licenses grant specified uses for defined territories and time periods. Royalty-free licenses (which are not actually free) grant broad use rights for a one-time fee. Copyright for photographs licensed through stock agencies remains with the photographer or agency, and using stock images outside the scope of the license is copyright infringement. Copyright Office registration of stock images is important for enforcement against infringers who use images without license.
Reverse Image Search and Online Infringement
Online infringement of copyright for photographs is rampant. Images are routinely copied and republished across websites, social media, and digital publications without license or attribution. Tools like Google Reverse Image Search, TinEye, and Pixsy help photographers find unauthorized uses of their images across the internet. Once infringing uses are identified, photographers can pursue DMCA takedown notices, demand letters, and in cases of registered works, copyright infringement litigation. Registration of photographs before infringement, or within three months of publication, is critical to accessing statutory damages and attorney fees in litigation.
Copyright Issues Specific to Visual Art
- Moral rights under VARA: Visual artists have special rights of attribution and integrity for qualifying works in limited editions
- Resale royalties: The US does not have a resale royalty (droit de suite) for visual artists, unlike the EU and many other countries
- Commissioned portraits: Ownership of portrait photographs depends on whether the photographer or the subject commissioned the work and the terms of any agreement
- Street art and murals: Murals are protected by copyright even when painted in public spaces; photographing and commercially exploiting murals may require permission
Conclusion
Copyright for photographs and visual arts provides robust legal protection for creators, but enforcing those rights requires proactive registration and monitoring. Understanding what is protected, how to register efficiently, and how to respond to infringement is essential for photographers, artists, and businesses that create or use visual content. PerspireIP provides comprehensive copyright counseling, registration services, and enforcement support for visual creators and the businesses that work with them.