throbber
No. 18-728
`
`
`
`In the Supreme Court of the United States
`________________
`
`
`JACOBUS RENTMEESTER,
`Petitioner,
`
`v.
`
`
`NIKE, INC.,
`
`________________
`
`Respondent.
`
`On Petition for Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`________________
`
`BRIEF OF AMICUS CURIAE DIGITAL JUSTICE
`FOUNDATION IN SUPPORT OF PETITIONER
`________________
`
`J. Carl Cecere
`Counsel of Record
`CECERE PC
`6035 McCommas Blvd.
`Dallas, TX 75206
`(469) 600-9455
`ccecere@cecerepc.com
`
`Counsel for Amicus Curiae
`
`
`
`Andrew Grimm
`DIGITAL JUSTICE
` FOUNDATION
`15287 Pepperwood Drive
`Omaha, NE 68154
`(531) 210-2381
`
`Gregory Keenan
`DIGITAL JUSTICE
` FOUNDATION
`81 Stewart Street
`Floral Park, NY 11001
`(516) 633-2633
`
`January 7, 2019
`
`

`

`
`
`TABLE OF CONTENTS
`
`Table of authorities .............................................................. ii
`
`Interest of amicus curiae .................................................... 1
`
`Introduction and summary of argument .......................... 2
`
`Argument ............................................................................. 4
`
`permit
`now
`developments
`I. Technological
`photography to meet, even exceed, other
`mediums’ artistic potential. ........................................ 4
`
`II. Technological developments also compound the
`consequences of failing to protect individual
`photographic elements. ............................................. 13
`
`III. Technological developments also reduce the risk
`that upholding photography’s equal artistic
`capacities might lead to overprotection. ................. 15
`
`Conclusion .......................................................................... 18
`
`
`
`
`
`
`
`
`
`(i)
`
`

`

`
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Burrow-Giles Lithographic Co. v. Sarony,
`111 U.S. 53 (1884) ............................................................. 6
`
`Campbell v. Acuff-Rose Music, Inc.,
`510 U.S. 569 (1994). ........................................................ 17
`
`Eldred v. Ashcroft,
`537 U.S. 186 (2003). ........................................................ 16
`
`Enter. Mgmt. Ltd. v. Warrick,
`717 F.3d 1112 (10th Cir. 2013) ........................................ 11
`
`Feist Pubs., Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340 (1991). .............................................. 6, 13, 14
`
`Sheldon v. Metro-Goldwyn Pictures Corp.,
` 81 F.2d 49 (2d Cir. 1936), aff ’d, 309 U.S. 390
`(1940) ................................................................................ 18
`
`Statutes:
`
`Act of March 3, 1865, 38th Cong., 2d Sess., 16
`Stat. 198 ............................................................................. 6
`
`17 U.S.C. §
`
` 101 .................................................................................... 12
`
` 102(a)(4). .......................................................................... 11
`
` 107 .................................................................................... 17
`
`Other Authorities:
`
`A Brief History of Photo Fakery, N.Y. Times
`(Aug. 23, 2009), <https://nyti.ms/2QrUc0D>. .............. 5
`
`Antonia Bardis, Digital Photography and the
`Question of Realism, 3 Journal of Visual Art
`Practice 209 (2004). .......................................................... 7
`
`
`
`(ii)
`
`

`

`iii
`
`Other Authorities—continued:
`
`T.M. Cannon & B.R. Hunt, Image Processing by
`Computer, 245 Scientific American 214 (1981 ............... 7
`
`Diarmuid Costello & Margaret Iversen,
`Photography Between Art History and
`Philosophy, 38 Critical Inquiry 679 (2012). ................. 11
`
`Sony Devabhaktuni, Overlooking Overpainting,
`Architectural Association Files 16 (2010) .................... 10
`
`Christine Haight Farley, The Lingering Effects
`of Copyright’s Response to the Invention of
`Photography, 65 U. Pitt. L. Rev. 385 (2004) .................. 4
`
`Vicki Goldberg, Portrait of a Photographer as a
`Young Artist, N.Y. Times (Oct. 23, 1983). ...................... 8
`
`Paul Goldstein, Goldstein on Copyright (3d ed.
`2017) ................................................................................. 16
`
`Katie Hafner, The Camera Never Lies, But the
`Software Can, N.Y. Times (March 11, 2004)
`<https://nyti.ms/2H06aPl>. ......................................... 14
`
`Rosemary Hawker, Idiom Post-medium:
`Richter Painting Photography, 32 Oxford Art
`Journal 263 (2009) .......................................................... 10
`
`Brian Hayes, Computational Photography, 96
`American Scientist 94 (2008). .......................................... 7
`
`Justin Hughes, The Photographer’s Copyright—
`Photograph as Art, Photograph as Database,
`25 Harv. J.L. & Tech. 327 (2012) ..................... 4, 5, 15, 16
`
`David La Rocca, The False Pretender: Deleuze,
`Sherman, and the Status of Simulacra, 69
`Journal of Aesthetics and Art Criticism 321
`(2011). ................................................................................. 8
`
`
`
`
`
`

`

`iv
`
`Other Authorities—continued:
`
`Susan Laxton, As Photography: Mechanicity,
`Contingency, and Other-Determination in
`Gerhard Richter’s Overpainted Snapshots, 38
`Critical Inquiry 776 (2012). ..................................... 10, 11
`
`Nimmer on Copyright (2018). .................................... 16, 17
`
`Elizabeth Porter, Taking Images Seriously, 114
`Colum. L. Rev. 1687 (2014). ........................................... 14
`
`Kristen Radden, 5 Painterly Apps to Turn Your
`iPhone Photos Into Paintings, iPhone
`Photography School (Dec. 9, 2014)
`<https://bit.ly/2sdGdS8>. ............................................... 9
`
`Barbara Savedoff, Escaping Reality: Digital
`Imagery and the Resources of Photography,
`55 Journal of Aesthetics & Art Criticism 201
`(1997). ............................................................................... 11
`
`Vlad Savov, Google Gives the Pixel Camera
`Superhuman Night Vision, The Verge (Nov.
`14, 2018), <https://bit.ly/2Q0EpcE>. ............................ 7
`
`Alison C. Storella, Note, It’s Selfie-Evidence:
`Spectrums of Alienability and Copyrighted
`Content on Social Media, 94 B.U. L. Rev.
`2045, 2052 (2014). .............................................................. 6
`
`Edward Weston, Seeing Photographically, 9
`Complete Photographer 3200 (1943), reprinted
`in Photographers on Photography 173
`(Nathan Lyons ed., 1966). ................................................ 5
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`In the Supreme Court of the United States
`________________________
`
` No. 18-728
` JACOBUS RENTMEESTER,
`
` v.
`
` NIKE, INC.,
`
`________________________
`
`Petitioner,
`
`Respondents.
`
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`________________________
`
`BRIEF OF AMICUS CURIAE DIGITAL JUSTICE
`FOUNDATION IN SUPPORT OF PETITIONER
`________________________
`
`
`INTEREST OF AMICUS CURIAE1
`
`The Digital Justice Foundation is a nonprofit corpora-
`tion dedicated to preserving individual rights in digital
`spaces. The Foundation has particular interest in the im-
`pact of the internet and digital technologies on civil liber-
`ties, privacy, and intellectual property. And it has particu-
`lar concern for underrepresented users, artists, creators,
`and innovators.
`
`
`1
` Counsel for all parties received notice of amicus curiae’s intent
`to file this brief 10 days before its due date. All parties have consented
`to the filing of this brief. No counsel for any party authored this brief
`in whole or in part, and no person or entity other than the amicus, its
`members, or its counsel made a monetary contribution intended to
`fund the brief ’s preparation or submission.
`
`
`
`
`(1)
`
`

`

`2
`
`
`All this affords the Foundation particular insight into
`the impact that the Ninth Circuit’s decision in this case is
`likely to have on copyright law, and the ways that decision
`will threaten photographers of all stripes—particularly
`those that practice their art through digital means.
`
`INTRODUCTION AND SUMMARY OF
`ARGUMENT
`
`The trouble with photography results from the sub-
`tlety of its potential for artistic expression. The crystal-
`line quality of a photograph can fool us into thinking what
`is depicted really is unmediated reality—as if the tableau
`it depicts simply occurred in nature by happenstance, ra-
`ther than being assembled by the photographer. A photo’s
`capacity for freezing moments in time also tricks us into
`missing the choreography that often goes into its crea-
`tion—in which every gesture, every garment fold, is a
`step in a dance playing out in still-life before our very
`eyes. The camera’s felicitous ease of use also tends to
`make us mistake its artistic creations for cheating—as if
`art must be hard to really be art. Time has only magnified
`photography’s seductive and misleading qualities, with
`technological wizardry that makes it impossible to tell
`what is real and what has been constructed, sometimes
`pixel by pixel. Never has it been easier to overlook the
`artistry of the photographer.
`
`The Ninth Circuit’s decision in this case makes this
`mistake multiple times. In refusing to recognize copy-
`right protection for a photograph’s elements beyond their
`selection and arrangement in a completed photo, the
`court relegates photographs to a mere “factual compila-
`tions,” protectable only in the artistry of the final product,
`rather than the methods and techniques that contributed
`to that final product. Pet. App. 10a.
`
`
`
`
`
`
`

`

`3
`
`The lower court likewise overlooked the creative po-
`tential of the photographer’s lens when it worried that ex-
`tending copyright protection to anything more than the
`ultimate arrangement of elements in Rentmeester’s pho-
`tograph risked granting him a “monopoly” on the very
`“idea” of Michael Jordan dunking a basketball in a “grand
`jeté” ballet pose, id. 14a—or the “idea[s]” embodied in
`photography’s more technical elements, such as a “highly
`original lighting technique” or a “novel camera angle,” re-
`moving them from the public domain, id. 9a.
`
`This charge would never be levied against any other
`medium. No one would claim that affording copyright
`protection to Bob Fosse’s dance creations would intrude
`into the realm of mere “ideas.” Nor, for that matter, would
`anyone claim that the Mona Lisa was a mere compilation
`of facts, such that Da Vinci had no right to his particular
`depiction of his eponymous subject or her enigmatic
`smile. Photography’s capacity for expression meets, if not
`exceeds, the creative potential in these other mediums,
`especially given the infinitely varied creative options
`available to today’s digital photographer. The Ninth Cir-
`cuit’s refusal to recognize this reality thus reflects bias,
`not careful consideration.
`
`It is essential that the Court take this case to reinforce
`photography’s proper place within the constellation of ar-
`tistic creation, and to lay to rest this kind of baseless bias
`against photography once and for all. This Court’s review
`will also prove vital to create a rule of copyright durable
`enough for the digital age. The century’s worth of devel-
`opments in photography that have occurred since the
`Court last addressed copyright protection in photography
`have brought about a profusion of creative innovators in
`photography’s technical elements—and a host of equally
`proficient copiers capable of stealing those individual
`
`
`
`

`

`4
`
`elements. Allowing copyright to go in the Ninth Circuit’s
`direction would prove inadequate to protect these tech-
`nical creators who currently dominate the field of photog-
`raphy—and the even more innovative creators following
`in their wake. Accordingly, this Court should accept the
`petition both to protect today’s creators in the photo-
`graphic medium, and tomorrow’s as well.
`
`ARGUMENT
`I. Technological developments now permit
`photography to meet, even exceed, other
`mediums’ artistic potential.
`
`A. Debates over photography’s artistic merits have
`been staples of coffee-house conversations since the me-
`dium was first invented. On one side have been aesthetes
`who have wondered whether photography’s ease of use,
`its widespread popularity, and its perceived capacity for
`capturing unmediated reality somehow diminished its
`creative potential.2
`
`B. On the other side have been the photographers
`themselves. And from the very beginning, they con-
`founded these critiques. From the mid-nineteenth cen-
`tury on, photographers demonstrated—and enlarged—
`photography’s artistic potential. They innovated through
`
`
`2 See, e.g., Justin Hughes, The Photographer’s Copyright—Pho-
`tograph as Art, Photograph as Database, 25 Harv. J.L. & Tech. 327,
`356 (2012) (questioning the artistic merit of photography when “it al-
`lows people untalented in drawing or painting to create visual images
`they might otherwise imagine but be unable to create”); Christine
`Haight Farley, The Lingering Effects of Copyright’s Response to the
`Invention of Photography, 65 U. Pitt. L. Rev. 385, 419 (2004) (noting
`that in photography’s early period, few artists “considered photog-
`raphy to be within the realm of art”).
`
`
`
`
`
`

`

`5
`
`their work in front of the camera—in the selection, and
`arrangement, and treatment of the image they were cre-
`ating. They innovated in the darkroom too, through tech-
`niques like airbrushing, multiple negatives, and photo-
`montage. Hughes, supra note 2, at 367. Indeed, one pop-
`ular image of Abraham Lincoln actually depicts his head
`grafted onto the more imposing body of vice-president
`and senator John Calhoun3:
`
`
`
`Even techniques that began as mistakes, like blurring
`and multiple exposures, soon became methods of expres-
`sion—facilitating photographers’ efforts to “depart from
`literal recording” and enter the realm of the creative.4
`
`C. In this debate over photography’s merits, copy-
`right law has consistently sided with the photographers.
`Congress officially gave its stamp of approval to the pho-
`tographic arts in 1865, when it officially made photo-
`graphs copyrightable. Act of March 3, 1865, 38th Cong.,
`
`
`3 A Brief History of Photo Fakery, N.Y. Times (Aug. 23, 2009),
`<https://nyti.ms/2QrUc0D>.
`
`4 Edward Weston, Seeing Photographically, 9 Complete Photog-
`rapher 3200 (1943), reprinted in Photographers on Photography 173
`(Nathan Lyons ed., 1966).
`
`
`
`

`

`6
`
`2d Sess., § 86, 16 Stat. 198 (providing for copyright of a
`“photograph or negative thereof ”). And the Court has
`consistently policed copyright’s boundaries in a manner
`that has left room for protection of the photographic art
`form. The Court rejected the argument that a prospective
`artists’ “sweat of the brow” effort in any way contributed
`to the originality of his expression—thus debunking any
`notion that the camera’s ease of use ought to make its cre-
`ations any less worthy. Feist Pubs., Inc. v. Rural Tel. Serv.
`Co., 499 U.S. 340, 359-60 (1991). The Court likewise made
`clear over a century ago in Burrow-Giles Lithographic
`Co. v. Sarony, 111 U.S. 53, 59-60 (1884) that photographs
`are not mere “factual compilations,” clarifying that copy-
`right protection extends to all of the artistic judgments in
`a photograph—not merely the end product itself. In
`Sarony’s famous picture of Oscar Wilde at issue in that
`case, these protected judgments included not only the
`photographer’s “posing” of Wilde, the arrangement of his
`costume, draperies, and accessories, and his expression,
`but also the photo’s more technical elements—“arranging
`and disposing the light and shade.” Id. at 60.
`
`D. These creative innovations of Burrow-Giles’ day
`were a dinosaur age compared to today’s craft. Back then,
`the photographic art was conducted with nothing but
`light, shadow, lens, and reactive paper. Today, photogra-
`phers have moved way beyond the odd “original lighting
`technique” or “novel camera angle.” Pet. App. 9a. And the
`art has been transformed by the fact that the computer
`has virtually displaced the darkroom, and photographers
`can change virtually every element in a photo—long “af-
`ter the shutter has clicked.”5 A photographer can add
`
`5 Alison C. Storella, Note, It’s Selfie-Evidence: Spectrums of Al-
`ienability and Copyrighted Content on Social Media, 94 B.U. L. Rev.
`2045, 2052 (2014).
`
`
`
`

`

`7
`
`people or objects to a photo, or add filters to change the
`coloring or other qualities of the finished product. More
`complex computer algorithms allow photographers to en-
`hance the quality of a photo beyond what appeared in the
`original. Blurry photographs can be made clear.6 Light
`can be added to a photo to reveal details that were ob-
`scured in the original.7 Indeed, with Google’s Night Sight,
`everyday photographers can change night into day:
`
`
`
`More astounding still, some photographers have pio-
`neered efforts allowing them to move the camera’s point
`of view depicted in a photo from one position to another—
`after the photo has been taken.8 And some cameras do not
`even do not need a picture at all. They are able to “gener-
`ate an image out of nothing” but data.9 In short, today
`
`
`6 T.M. Cannon & B.R. Hunt, Image Processing by Computer, 245
`Scientific American 214, 214 (1981).
`
`7 Vlad Savov, Google Gives the Pixel Camera Superhuman
`Night Vision, The Verge (Nov. 14, 2018), <https://bit.ly/2Q0EpcE>.
`
`8 Brian Hayes, Computational Photography, 96 American Sci-
`entist 94, 97-98 (2008).
`
`9 Antonia Bardis, Digital Photography and the Question of Re-
`alism, 3 Journal of Visual Art Practice 209, 211 (2004).
`
`
`
`

`

`8
`
`photographers could arrange the same tableau that
`Sarony created in his famous photo of Wilde, down to the
`folds of Wilde’s gown, without having access to any photo
`of Wilde—or indeed, any photos at all.
`
`Photographers have taken the freedoms facilitated by
`these technological advances in fantastical, wonderous
`new directions. Some artists, like Tom Bamberger, create
`images that never existed, and cannot exist outside the
`computer-facilitated photographic medium. Bamberger
`takes a single image and then uses a computer to extend
`that image into a seemingly endless horizontal landscape:
`
`
`Other photographers deliberately challenge the
`viewer’s ability to discern fact and fiction. Take Cindy
`Sherman, who famously composes photographs where
`she assumes various characters—even a corpse or an
`abused woman—thereby forcing the viewer to decide
`whether the photo actually depicts a person who has been
`abused, or actually is dead.10 Sherman started out as a re-
`alistic painter aiming at perfect reproduction, but found
`photography to be “much quicker.”11 Sherman’s art chal-
`lenges the assumption that photographs depict things
`
`
`10 David La Rocca, The False Pretender: Deleuze, Sherman, and
`the Status of Simulacra, 69 Journal of Aesthetics and Art Criticism
`321, 321-22 (2011).
`
`11 Vicki Goldberg, Portrait of a Photographer as a Young Artist,
`N.Y. Times, at 2 (Oct. 23, 1983).
`
`
`
`

`

`9
`
`that have actually happened or persons that actually ex-
`isted. Here, for example, she takes the guise of an aging
`high-society woman:
`
`
`Other photographers use technology to blur the line
`between photography and other genres like painting. Ap-
`plying a filter, a photographer can make a photo appear
`as though it has the brushstrokes of a painting12:
`
`
`
`
`12 Kristen Radden, 5 Painterly Apps to Turn Your iPhone Pho-
`tos Into Paintings, iPhone Photography School (Dec. 9, 2014)
`<https://bit.ly/2sdGdS8>.
`
`
`
`
`
`

`

`10
`
`And some artists, like the world-famous Gerhart Rich-
`ter, take that blurring in the other direction. Much of
`Richter’s work involves projecting a photograph onto a
`screen and then painting a near replica of it—sometimes
`adding “blurs” with adjustments to the paint.13 He claims
`this is an attempt to “paint like a camera.”14 On other
`works, Richter painted over existing photographs, fur-
`ther challenging the meaningfulness of any line between
`painting and photography:
`
`
`Indeed, so intertwined are painting and photography in
`Richter’s mind that he does not even consider himself a
`
`
`13 Sony Devabhaktuni, Overlooking Overpainting, Architectural
`Association Files 16, 17 (2010); see also Rosemary Hawker, Idiom
`Post-medium: Richter Painting Photography, 32 Oxford Art Journal
`263, 265 (2009).
`
`14 Susan Laxton, As Photography: Mechanicity, Contingency,
`and Other-Determination in Gerhard Richter’s Overpainted Snap-
`shots, 38 Critical Inquiry 776, 787 (2012).
`
`
`
`
`
`

`

`11
`
`painter. He says instead: “I am practicing photography by
`other means.” Laxton, supra note 14, at 787.
`
`These few examples demonstrate why many critics
`believe the pendulum has swung completely in the other
`direction. Once painting occupied the privileged position
`in the art world, with the aesthetes questioning whether
`photography could ever match its artistic potential. But
`now it is photography, not painting, that has become “the
`privileged object of art theory.”15 Accordingly, the photog-
`rapher has proven capable of meeting, if not exceeding,
`the creative capabilities of the painter, enjoying the com-
`plete freedom “to depict whatever he or she can imag-
`ine.”16
`
`E. As photographs thus have the same creative poten-
`tial as paintings, they ought to enjoy painting’s copyright
`protection. Just as paintings cannot be reduced to a “com-
`position of unprotectable colors,” Enter. Mgmt. Ltd. v.
`Warrick, 717 F.3d 1112, 1119 (10th Cir. 2013), Rent-
`meester’s photographs too cannot be reduced to mere
`“compilation” of unprotectible facts.
`
`That protection extends even to the highly creative
`and original pose that Rentmeester made Jordan assume.
`There is no doubt that Congress believed the positioning
`of bodies in space could have sufficient originality to be
`copyrightable. It said so specifically, by giving copyright
`protection to “pantomime and choreographic works.” 17
`U.S.C. § 102(a)(4). Congress was thus able to distinguish
`
`
`15 Diarmuid Costello & Margaret Iversen, Photography Between
`Art History and Philosophy, 38 Critical Inquiry 679, 680 (2012).
`
`16 Barbara Savedoff, Escaping Reality: Digital Imagery and the
`Resources of Photography, 55 Journal of Aesthetics & Art Criticism
`201, 210 (1997).
`
`
`
`

`

`12
`
`between unprotectible “facts” and “ideas” from protecti-
`ble poses. And it does not matter that the “dance” of the
`subject’s pose in a photograph is captured in still life. Cho-
`reography is protected only when it is “fixed’ to a “tangi-
`ble medium” such as a photograph. Id. § 101. That is, it
`must be reduced to a photo—or some other medium—to
`receive copyright protection.
`
`Congress’s evident logic checks out: Granting Rent-
`meester a copyright in Jordan dunking a basketball in a
`grand jeté does not actually grant him a “monopoly” on
`any idea—Jordan remains free to use the same moves in
`his repertoire as he could before Rentmeester took his
`picture, just as other photographers remain free to cho-
`reograph their subjects in as many poses as the mind can
`fathom and the human form can assume.
`
`By these same lights, granting copyright in the tech-
`nical details of a photograph’s creation confers no monop-
`oly—because the photographer cannot claim ownership
`of the techniques, but only in the visual depiction of the
`photographer’s expression. The message is clear: as
`DaVinci would have been entitled to claim his Mona Lisa,
`and Fosse would be able to claim his dances, Rentmeester
`can claim Jordan dunking via grand-jeté. And the simi-
`larly innovative artists of the technical aspects of photog-
`raphy can claim similarly robust protection.
`
`F. That does not mean, however, that every element in
`every photograph will constitute protectible expression
`beyond its selection and arrangement. Where the photog-
`rapher is uninvolved in creating an element—where he
`leaves his subject, or the technical details of the photo, as
`he finds them—then the scope of protection does not ex-
`tend to that element, and the photographer’s copyright is
`properly more limited.
`
`
`
`

`

`13
`
`But everything that the photographer does deliber-
`ately to create expression, before, during, and after the
`picture is taken, enjoys protection. That includes the pho-
`tograph’s composition, and also the lighting, filters,
`lenses, camera, film, perspective, aperture setting, shut-
`ter speed, and processing techniques he decides to apply
`to it. When the photographer has made these choices, he
`has not simply taken his facts as he finds them. He has
`created those facts, so they do not result from happen-
`stance, but “owe their origin to an act of authorship.” See
`Feist, 499 U.S. at 347. And accordingly, all of those delib-
`erately created elements should enjoy copyright protec-
`tion.
`II. Technological developments also compound the
`consequences of failing to protect individual
`photographic elements.
`
`Allowing the Ninth Circuit’s stunted view of photo-
`graphic copyrights to stand will not only enshrine an im-
`proper bias against photography into law—it will have
`real consequences for all photographers, ultimately di-
`minishing the value of every photograph to its owner.
`This is not merely because “inevitably,” the “copyright in
`a factual compilation is thin.” Feist, 499 U.S. at 349. It is
`also because leaving the “elements” in a photograph un-
`protected will lay artists bare to the most common types
`of copyright theft. Just as technological advances have fa-
`cilitated expression in photography, these same technolo-
`gies have also facilitated new ways of copying that would
`effortlessly skirt the Ninth Circuit’s limited protections of
`photographic copyrights.
`
`A. Gone are the days when a person who sought to
`copy a photograph had to obtain the physical negative or
`make do with a grainy copy clipped from a newspaper or
`magazine. These days, high-quality copies are just a
`
`
`
`

`

`14
`
`mouse-click away, and come in virtually limitless supply.
`Over 3.5 trillion photos have been taken, a proliferation of
`ready-available images that has been facilitated en masse
`by the creation of camera phones.17 That has led to a diz-
`zying array of photos that appear online. On Facebook
`alone, within just a few years of the camera phone’s intro-
`duction, there were more than twenty billion photos. Id.
`at 1719.
`
`B. Things are made considerably worse by the exist-
`ence of editing tools that enable any would-be copier to
`manipulate a photo in boundlessly variable ways—the
`same tools that facilitate photographer’s creation of their
`own new works. The result is that photos are copied,
`chopped, and manipulated in infinite variety by people
`who have never even met the photo’s true owner, much
`less obtained their permission. Once, such photo-editing
`software cost thousands of dollars, available only to
`trained specialists.18 Today, it is included with many
`smartphones or downloadable for a small fee.
`
`C. As the Ninth Circuit applied the substantial simi-
`larity test, the mere cropping of a photo becomes enough
`to avoid infringement, an act accomplished easily on any
`number of devices in a matter of seconds. If the elements
`of a photograph are only protectible in combination, leav-
`ing people “free to borrow any of the individual elements
`featured in a copyrighted photograph, ‘so long as the com-
`peting work does not feature the same selection and ar-
`rangement’ of those elements,” Pet. App. 11 (quoting
`Feist, 499 U.S. at 349), then anyone could remove a single
`
`17 Elizabeth Porter, Taking Images Seriously, 114 Colum. L. Rev.
`1687, 1699 (2014).
`
`18 Katie Hafner, The Camera Never Lies, But the Software Can,
`N.Y. Times, at 1 (March 11, 2004) <https://nyti.ms/2H06aPl>.
`
`
`
`

`

`15
`
`element from any photograph and then claim ownership
`in the resulting derivative anew. If that test were applied
`to other mediums, a person could simply lift the Mona
`Lisa’s smile right off her face, or remove a chapter from
`The Great Gatsby, and avoid infringement. And the orig-
`inal creator would receive nothing. That would not do for
`these other mediums. And it will not do for photography.
`
`Technology’s expansion of copying potential provides
`a compelling reason to reinforce copyright protections for
`photographers in the digital age, and not to give in to the
`historical bias against photography.
`III. Technological developments also reduce the risk
`that upholding photography’s equal artistic
`capacities might lead to overprotection.
`
`It is at least possible, however, that the Ninth Circuit’s
`evident bias against photography is not the product of
`some irrational prejudice against the medium. It might be
`rooted instead in legitimate, albeit misplaced, concerns
`about over-protection. After all, it is at least worth asking
`whether, with so many photos being taken and shared
`online, the sheer tonnage of copyrighted material might
`make infringement ubiquitous and unavoidable, turning
`every photograph maker into an unwitting photograph
`stealer.
`
`A. There is some evidence that the Ninth Circuit had
`these sorts of concerns in mind: The chief source the court
`relied upon for its stunted view of copyright in photo-
`graphs itself raised such concerns about over-protection.
`Hughes, supra note 2, at 330 (warning that the “suite of
`problems for copyright will only worsen as we enter a pe-
`riod in which our daily lives are ubiquitously recorded in
`photography and videography”).
`
`
`
`

`

`16
`
`B. Yet if it was concern about over-protection that
`drove the Ninth Circuit to its stunted view of photog-
`raphy, that move was an unnecessary one, because there
`are several reasons why such fears are unfounded. For
`one thing, this same critic who warns against the dangers
`of over-protection also suggests at least one reason why
`over-protection is unlikely to occur: Many of the most
`abundant photos will be surveillance photos, satellite im-
`ages, and nearly disposable snapshots—and the protec-
`tions available for these types of photos will be far lower
`than for the more creative photos taken by professional
`photographers. Id. at 375-76.
`
`For another, the doctrines delimiting the “traditional
`contours of copyright protection” are already more than
`adequate to accommodate today’s influx of taking and
`sharing photographs without resulting in over-protection.
`Eldred v. Ashcroft, 537 U.S. 186, 221 (2003). The availabil-
`ity of these doctrines meant there was no need for the
`Ninth Circuit to denigrate the artistry of photography, or
`to collapse the realm between “facts” and “ideas” in pho-
`tography to avoid over-protection risk.
`
`1. Foremost among these are the closely-intertwined
`doctrines of “scène à faire” and “merger.” The former de-
`clines copyright protection when there are only ex-
`tremely limited ways to express a common idea—so the
`“common idea is only capable of expression in more or
`less stereotyped form.” 4 Nimmer on Copyright § 13.03
`(2018). The latter declines to extend copyright protection
`when function dictates that expression occur in only one
`way—keeping “functionally—and factually—dictated ex-
`pression free for competitors to use.” Paul Goldstein,
`Goldstein on Copyright § 2.3.2 at 2:44 (3d ed. 2017). Thus,
`for example, the popularity of camera phones and social
`media will certainly mean that many more families will
`
`
`
`

`

`17
`
`take and share virtually identical photographs in front of
`the Statue of Liberty. Yet copyright would not give the
`first person to take this clichéd photo any right to prevent
`everyone else from taking it simply because she was first
`through the door to take part in the cliché. The limiting
`doctrines of “scène à faire” and “merger” exist “[p]re-
`cisely to avoid such absurd results.” See 4 Nimmer on
`Copyright § 13.03.
`2. The defense of fair use, 17 U.S.C. § 107, is another
`method of preventing over-protection. It avoids “rigid ap-
`plication of the copyright statute when, on occasion, it
`would stifle the very creativity which that law is designed
`to foster.” Campbell v. Acuff-Rose Music, Inc., 510 U.S.
`569, 577 (1994). Accordingly, even as more and more
`popstars share their exploits via photos posted on Insta-
`gram, and their fans go on to imitate the p

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