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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

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