AFP argues photojournalists don’t deserve copyright

A Portugal-based, former AFP photographer is suing AFP to get copyright ownership of his work.

AFP is claiming that all news photography is automatically public domain because the photos are just vehicles that portray facts of daily life. Such photos are not creative and do not deserve copyright.

Of course you see the obvious irony and folly of AFP’s claims. If AFP is correct then AFP itself would no longer have copyright on any of the news photos that it sells.

You do remember AFP? That’s the news agency that sued photographer Daniel Morel in 2010 after AFP got caught stealing and selling Morel’s photos. AFP claimed it had the right to take and resell any photo it found on Twitter.

AFP is partially correct in its claims: facts cannot be copyrighted. But the expression of those facts can and do hold copyright.

You cannot copyright the fact that Sports Team A defeated Sports Team B by a score of 7-4. Sports leagues have tried to do this many times and they have failed every time. But you can copyright how you express/report that 7-4 game.

Copyright exists only in creative works. This is why you cannot copyright lists, directories, recipes, forumulas, titles, names, numbers, etc. These “works” are considered technical, not creative.

Photographs can hold copyright only if they are creative. The bar for creativity is very low but it’s not as low as you might think.

You can’t copyright a technical photo. You can’t copyright a photo shot by an automatic camera such as a traffic cam, a security camera, a front-door cam or a vehicle’s dash cam. All of these cameras’ functionality, and the imagery produced, are derived from technical considerations not creative ones.

I believe you cannot copyright some copy photos, for example, an exact copy of a painting, postage stamp, currency, a magazine cover, another photo, etc. There was a court ruling on this, I think in the US, which said that such copy photos were technical not creative. Canadian copyright law is different than US law but I suspect it would be the same in this case.

Are news photos always creative? A photo shot by a professional would be creative simply because that’s exactly what photojournalists are trained to do – to see and think.

But what happens when a person simply holds up their cellphone and clicks the record button? Are these creative or technical in nature?

In some cases, I bet an argument could be made that such cellphone recordings are not creative and the person simply acted as a human tripod. We’ll have to wait for a such a copyright case to happen.

 
Side note: If you do sell all rights to your work, Canada’s copyright law (Section 14.1) does have reversionary rights but they don’t happen until 25 years after your death.