Copyright protection for photographs of Pope Francis?

A painting of Pope Francis, officially commissioned by the World Meeting of Families ahead of the Pope's visit to the USA, has been under scrutiny amidst allegations that is based entirely on a photograph of Pope Francis. The rights in the photograph are owned by Getty Images who are reportedly investigating the matter further, and it will be interesting to see how matters unfold, especially considering the painting has reportedly been commercialised and transposed onto mugs and t-shirts to be sold during the visit.

In a similar recent case The Associated Press sued an artist on copyright grounds for basing his 'HOPE' poster on a photograph of Barrack Obama from their outlet.  Ultimately the case settled out of court (for a reported $1.6 million).

The current issue raises an interesting legal point in terms of copyright protection; art will be protected by copyright providing it is 'original', but there is a more stringent test for photography.

A photograph must satisfy a certain threshold in terms of originality before qualifying for copyright protection. To put it simply, a photographer is required to make a series of creative choices in relation to, for example, the angle, lighting or editing of a photograph, thus making it 'original' and so qualifying for copyright protection.

A photographer copying the creative choices of another photographer may breach the prior photographer's copyright – see the Temple Island case where the copying of creative choices in relation to digital effects resulted in copyright infringement.

Ultimately, 'originality' (a pre-requisite for copyright protection) comes down to an author's (or photographer's) expression of an idea – photographs of the same scene by two different photographers could each qualify for independent copyright protection.

We recently reported on the risks surrounding direct use of another person's photograph – 'Photographs and the Law – Re-publish, retweet, regret?'.