When it comes to case law on copyright infringement of original artworks, digital photography needs more light to shoot with. Michael C. Cesarano, partner at IP firm Feldman Gale, writes, “Given the disparity in courts’ interpretations of what constitutes a derivative work, it seems likely that a tourist or art collector could become an infringer simply by photographing copyrightable artwork.”
In one ruling, Cesarano recounts, a photograph of an artwork doesn’t add anything new it merely “depicts” it; in another ruling, which settled on appeal, the lower court held that an original photograph of a copyrightable object could be a derivative. It’s enough to leave patrons of the arts wondering which way to point their cameras.
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