On Friday, February 13, 2015, Professor Justin Hughes delivered a lecture sponsored by the Iowa Intellectual Law Society and Innovation, Business & Law Center on copyright law and photography.  Hughes, a member of the Loyola Law School-Los Angeles faculty and former advisor to the Obama administration on intellectual property issues, argued that the current copyright protection of photographs has “gone amok” from the historical understanding of what makes photos copyrightable.

In his presentation, Hughes, retraced the early extensions of copyright protection to photography. He emphasized that the law sought to protect photographers’ creative expressions, such as the arrangement, lighting, and posing of subjects, more than the act of capturing a moment in time on film.

Hughes explained that the distinction between original expression and recording reality creates a spectrum of copyright protection for photos that contemporary copyright law seems to overlook when a fashion photographer in the studio, a photojournalist at a battlefront, and the driver of a Google Street View vehicle all receive the same copyright for their work.

Hughes persuaded Dylan McKinnon, a 1L. “He made a pretty compelling argument that you need to put forth creativity” to receive greater copyright protection observed McKinnon.

Prof. Hughes also compared photos to databases. The underlying facts of a database cannot be copyrighted, but to the extent the compilation involves originality or a creative expression, copyright law protects that portion of the database. A photo of city, Prof. Hughes posited, records the location of buildings, creating a visual database. But the photographer’s decision about the angle of the photo, the time of day to take the photo, and the use of post-production editing represent the photographer’s creative expression.  

The comparison resonated with Tyron Jensen, a neuroscience graduate student enrolled in Introduction to Intellectual Property Law. “The simplistic takeaway from early cases on photography copyrights is that pictures are copyrightable, but Prof. Hughes challenged that notion. It’s the creation of the picture – the expression – that is copyrightable,” he said.     

For Kyndra Lundquist, a 3L, the question-and-answer session following Prof. Hughes’s remarks stood out. “It’s always more interesting when people affected by laws attend and share their opinions,” she said, referring to local photojournalists who attended the presentation and disagreed with some of Prof. Hughes’s observations about the strength of copyright protection that should apply to photojournalism.

Click below to watch Prof. Hughes’s presentation.   

--Jay Stirling | February 20, 2015