If I imitate a photography session is that copyright infringement?

Oct 21, 2014

Topic: General Legal
Time Investment: 5 Minutes
Suggested Product: Property Use Agreement

I came across a great location and gained permission from the property owner to use it.  A well-known photographer has used that location for a few years.  I have had a wooden swing and this location is the perfect place to put it up and use it.  This same photographer also uses a wooden swing there.  Would I be infringing on her copyright if I use a similar wooden swing in the same location that she does?

Finding a great location is awesome (even better if you obtain permission for a private location), but sometimes the fear of copying someone may come into play.  On the facts of the question above though, it can generally be said that this imitation is not a copyright infringement.

Further, locations are not copyrightable.  If we had a situation where a photographer was recreating a specific photo, then derivative work liability might attach, depending on the circumstances surrounding the situation.

Derivative works are a newly created and original work that includes an aspect, or multiple aspects, of an already existing, copyrighted work. (See these resources on Copyright Law for Photographers).

US Copyright Office Circular 14: Derivative Works notes that:

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.

The more different works are and the most artistic influence a photographer puts on the session, then the less likely derivative work liability would apply.


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