The creativity of photographic works should not be determined by whether a photographer has made the adjustments of traditional photography techniques to the works. (Taiwan)

Luke Hung

The Intellectual Property Court rendered the 108-Min-Zhuan-Su-103 Decision of December 30, 2019 (hereinafter, the “Decision”), holding that since mobile phones have different shooting modes, the creativity of photographic works should not be determined by whether a photographer has made traditional adjustments to “aperture, depth of field, light intensity, shutter speed, etc.”

According to the facts underlying this Decision, the Plaintiff was an e-commerce enterprise specializing in the import, wholesale and retail of small home appliances, 3C accessories, beauty products, etc.  The “OO” product pictures (hereinafter, the “Pictures at Issue”) are photographic works protected by the Copyright Law since they were created with camera angles chosen by Plaintiff Company’s employee X based on the creative theme and according to his personality and creativity preferences for professional creations and were selected, according to X’s subjective perception, as the most appropriate pictures to go through subsequent artistic production.  Since the Pictures at Issue were created by Plaintiff’s employee X during the performance of his job duty, the Plaintiff was the copyright holder of the Pictures at Issue.  The Defendant reproduced and publicly transmitted the Pictures at Issue without the Plaintiff’s consent to the online shop he operated to market loudspeaker products, resulting in infringement of Plaintiff’s artistic works copyright of the Pictures at Issue and also indirect infringement of the photographic works copyright.  Therefore, the Plaintiff filed a complaint in accordance with Articles 88, Paragraphs 1 and 3 of the Copyright Law to claim damages from the Defendant.

According to the Decision, the degree of creativity required by the Copyright Law with respect to “creativity” is not as high as the degree of originality required of an invention, utility or design under the Patent Law and only requires a minimum degree of creativity that can demonstrate the personal spiritual function of the creator.  Therefore, most works can meet the standard for creativity. Photographic works are works in which thoughts and feelings are expressed in fixed images.  They are presented in formats including photographs or slideshows and through other methods of photographic production.  Since smartphones are built-in with different shooting modes, whether a photographic work is “creative” cannot be determined by whether a  photographer makes adjustments of traditional photography techniques to “aperture, depth of field, light intensity, shutter speed, etc.”  As long as the photographers use the original ideas that emerge in their mind and make choices and adjustments to the themes, subjects, angles, compositions, etc. during the photographic process to the extent that the creators’ thoughts and feelings can be objectively conveyed, copyright protection should be granted.

It was further pointed out in this Decision that, based on the original production records of the photographic files, all the photographs taken of the goods and a description of the creative process of the Plaintiff’s employee X as submitted by the Plaintiff, it is believable that Pictures at Issue were created by the Plaintiff’s employee, not copied from others and were “original.”  Therefore, the Pictures at Issue are photographic works protected under the Copyright Law due to their “originality.”  From the overall composition of the Pictures at Issue, the production method and the manner of expression, it be concluded that there were choices and adjustments to the photographic themes, subjects, angles, compositions, etc., which objectively express the author’s thoughts and feelings.  Since the Pictures at Issue should be considered to have reached the minimum creative level of photographic works, they were “creative” and should be copyrightable.