Taiwan: Determining the originality of a photographic work

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Taiwan: Determining the originality of a photographic work

In 2008, a legislator's wig was ripped off at the Control Yuan of Taiwan, an incident which was recorded by photography by a number of reporters at the scene. As a newspaper company used a photograph taken by an on-the-spot reporter hired by another party without obtaining prior consent, the company was sued for violation of copyright law.

In this lawsuit, whether the photograph at issue met the requirements of originality and creativity was one of the key issues addressed. The court of the first and second instances both ruled in favour of the copyright claimant. In January this year, the Supreme Court rendered a final decision upholding the ruling of the High Court. The Supreme Court found that insofar as an artwork passes the originality and creativity thresholds, it is eligible for copyright protection. In terms of a photographic work, if a photographer exercises his skill and independent creativity in framing, lighting, focal length adjustment, shutter speed control, photography techniques at the time of taking pictures, the photograph shall be copyrightable. In light of this, the photograph at issue should be protected under copyright law since it sufficiently showcased the original quality of an artwork built upon the photographer's personality and sentiments.

Although there are not many similar cases heard by the Supreme Court, the Supreme Court rarely considers a photograph to be original and copyrightable as is in the above-mentioned case. For instance, in 2002, the Supreme Court held in its ruling that the photograph in question was only a faithful reproduction of a medal which was to be printed on the packaging as an indication of praise of the product inside without involving originality or creativity. In 2008, in another lawsuit, the copyright claimant averred that as well as adding a ribbon bow tie as decoration, he employed a polarising filter to remove reflections so as to render the medal captured brighter and clearer and hence the originality and creativity of the photograph should be unquestionable. The Supreme Court, however, held that the photograph did not exhibit sufficient originality and creativity on the following grounds:

"Firstly, the application of bow ties is common in everyday life, such as bow ties affixed to collars or those used to arrange ornamental flowers. As for the applied polarising filters, they are generally used to reduce the light reflected by an object. For instance, when photographing, use of a polarising filter can reduce the light reflected from the blue sky, water surface and glass windows. Likewise, a photographer tends to use other devices, e.g. shooting with the use of a lens skirt or use of soft light, to avoid the reflection of an object caused by excessive lighting. Although the copyright claimant used a polarising filter when photographing the medal, the photograph did not suggest any adjustments on photography composition, camera angle, lighting and shutter speed control, factors dictated by personal preferences. Nor was it possible to tell the copyright claimant's thoughts or sentiments from the photograph based on the modification of photographic film, photographic visualisation, or photographic processing. In other words, the copyright claimant merely took a direct picture of the medal in an environment where there was sufficient light and no direct light source. As such, the photograph is not copyrightable for failing to meet the requirements of originality and creativity."

In the determination of whether a photograph is copyrightable or not, a case-by-case approach is generally taken. However, it is undeniable that the more clearly a photographer elaborates on how his/her thoughts and sentiments are expressed through a photograph, the higher the chance that the photograph will be considered as meeting the requirements of originality and creativity.

Frank Liu


Saint Island International Patent & Law Offices7th Floor, No. 248, Section 3Nanking East RoadTaipei 105-45, Taiwan, ROCTel: +886 2 2775 1823Fax: +886 2 2731 6377siiplo@mail.saint-island.com.twwww.saint-island.com.tw

more from across site and SHARED ros bottom lb

More from across our site

Leaders at the newly merged firm Jones Maxwell Smith & Davis reveal their plan to take on bigger firms while attracting more clients and talent
Charles Achkar, who will bring a team of two with him, said he was excited about joining ‘one of the few strong IP boutiques’
Andy Lee, head of IP at Brandsmiths and winner of the Soft IP Practitioner of the Year award, tells us why 2024 was a seminal year and why clients value brave advice
The deal to acquire MIP's parent company is expected to complete by the end of May 2025
Jinwon Chun discusses the need for vigilance, his love for iced coffee, and preparing for INTA
Karl Barnfather’s new patent practice will focus on protecting and enforcing tech innovations in the electronics, AI, and software industries
Partner Ranjini Acharya explains how her Federal Circuit debut resulted in her convincing the court to rule that machine learning technology was not patent-eligible
Paul Hastings and Smart & Biggar also won multiple awards, while Baker McKenzie picked up a significant prize
Burford Capital study finds that in-house lawyers have become more likely to monetise patents, but that their IP portfolios are still underutilised
Robert Reading and Faidon Zisis at Clarivate unpick some of the data surrounding music-related trademarks
Gift this article