Photographs and design drawings on product catalogs should be copyrightable (Taiwan)

Yuki Chiang

According to the facts underlying the 109-Min-Zhu-Shang-2 Decision of October 22, 2020 judged by the Intellectual Property Court, Appellant, Company A, sought to help its customers and vendors better understand various products by editing and creating product brochures based on the features, functions and design characteristics of the products and by putting a photograph and a product-describing design drawing under the name of each product so as to make the product specifications clear at one glance.  Subsequently, Company A found on a webpage of Company B that Company B misappropriated the product pictures and design drawings in Company A’s product brochures.  Therefore, Company requested that Company B and its legal representative should assume the joint and several liability for damage in accordance with Article 88, Paragraphs 1, 2 and 3 of the Copyright Act, Articles 184 and 185 of the Civil Code and Article 23, Paragraph 2 of the Company Act.

In this case, the parties disputed whether the photographs and design drawings of the products were “original” to be protected under the Copyright Act.  The court held that the so-called “original work” includes the concepts of “originality” and “creativity.”  Unlike the high degree requirement under the Patent Act, the extent of creativity required under the Copyright Act is very low. That is to say, it is sufficient to have a minimum degree of creativity to demonstrate the personal spiritual function of the author.  Due to the advancement of technology, even smartphones are equipped with different shooting modes to choose from.  Therefore, the evaluation of whether a photographic work is “creative” is no longer determined by whether the traditional photographer has made adjustments through photographic techniques such as “aperture, depth of field, illumination, and shutter speed,” but rather, it should be considered that as long as the photographer presents the original ideas in his/her mind in the selection and adjustment of the theme, subject matter, shooting angles, and composition to the extent that the thoughts and feelings of the author can be objectively demonstrated, copyright protection should be provided.  

Therefore, the court first found that the photos of the  products were arranged and placed in such a way that the viewer could understand the whole picture of the products, and the creator took the photos from top to bottom at an angle of 45 degrees in order to clearly present the appearance of the products, creating a sense of three dimensional space represented by the XYZ axes.  And the source, the angle, and the area of light were adjusted during the shooting so that the area of black lines falls on the correct position and outlines the structure of the parts that the creator intended to present.  In addition, the design drawings of the products show that the creator has chosen and designed the viewing angles and cross-sections of the products, the patterns of joints between components, and bonding relationships, so that the viewers can clearly understand the external characteristics of the products.  Therefore, these works, which have conveyed the creative ideas and  sufficiently expressed personality and uniqueness of the creator, are original photographic and graphical works should be protected under the Copyright Act.