The Author Was Not an Author: The Copyright Interests of Photographic Subjects from Wilde to Garcia

14 Pages Posted: 6 May 2016  

Eva E. Subotnik

St. John's University School of Law

Date Written: May 1, 2016

Abstract

Toward the end of his dissent in Garcia v. Google, Judge Alex Kozinski remarked that “[w]hen modern works, such as films or plays, are produced, contributors will often create separate, copyrightable works as part of the process.” Judge Kozinski’s characterization of plays (or even films) as “modern works” opens the door to an examination of that claim with respect to another genre of modern work: the photograph. This essay focuses on the treatment of claimed authorial contributions by photographic subjects to the photographs in which they are portrayed. It traces the analysis of this issue from the early photography cases (and provides the relevant litigated images) to present times. What emerges is a forceful line of precedent that largely did not consider, accept, or emphasize a photographic subject’s authorial contributions to a finished photographic image. Coming full circle, I argue that longstanding judicial instincts on this front may help explain the outcome in the Garcia case.

Keywords: Copyright, Photography, Authorship, Photographer, Photographic Subject, Actor, Work Made for Hire

Suggested Citation

Subotnik, Eva E., The Author Was Not an Author: The Copyright Interests of Photographic Subjects from Wilde to Garcia (May 1, 2016). 39 COLUM. J.L. & ARTS 449 (2016); St. John's Legal Studies Research Paper No. 16-0008. Available at SSRN: https://ssrn.com/abstract=2773722

Eva E. Subotnik (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States
718-990-3296 (Phone)

Paper statistics

Downloads
106
Rank
209,893
Abstract Views
560