Idea-Expression Dichotomy in Photographs

David Tan

David Tan

The idea-expression dichotomy in copyright law is a difficult to concept. Put simply, ideas do not get copyright protection, but the expression of an idea secures for the creator a limited term monopoly right known as copyright.

Certain types of works can be dissected into protectable expression and unprotectable ideas more readily than others. For instance, vampires being destroyed by sunlight is an unprotectable idea, but the expression of vampires whose skin sparkle like diamonds in sunlight is a protectable expression. In a movie screenplay, one can more easily break it down into elements such as plot, themes, dialogue, mood, setting, pace, characters, and sequence of events, and then analyse each element to see whether it is a protectable expression or an unprotectable idea.

It is far more difficult to dissect photographs into protectable and unprotectable elements in the same way. According to the United States Ninth Circuit Court of Appeals, while photographs can be broken down into objective elements that reflect the various creative choices the photographer made in composing the image — choices related to subject matter, pose, lighting, camera angle, depth of field etc – none of those elements is subject to copyright protection when viewed in isolation. It is true that with respect to a photograph’s subject matter, no photographer can claim a monopoly on the right to photograph a particular subject just because he or she was the first to capture it. Subsequent photographers are free to take their own photo of the same subject so long as the resulting image is not substantially similar to the earlier photograph. Moreover the photographer is entitled to protection only for the way the pose of the individual that is expressed in his or her photograph, a product of not just the pose, but also a combination of the choice of the camera angle, timing, and shutter speed. In summary, it is never easy to establish which aspects of a photograph are ideas and which are expressions.

The recent photographs of Angelina Jolie for Harper’s Bazaar December 2019/January 2020 issue (US edition) photographed by Sølve Sundsbø made me wonder whether one has borrowed an unprotectable idea from Herb Ritts’ original works in the 1980s-90s or has appropriated protectable expression. You decide!

2019 photographs by Sølve Sundsbø
1980s-90s photographs by Herb Ritts