it will be rejected—either completely or with a request that you remove
the infringement and resubmit.
Copyright is aimed at protecting rights in original works. There is
considerable debate over how truly original a photograph is, and this
has led to a divergence in approach to copyright protection for
photography in different jurisdictions. In England, section 1(1)(a) of
the Copyright Designs and Patents Act 1988 (the Act) affords protection
to “artistic works,” and section 4 of the Act defi nes “artistic works”
as “a graphic work, photograph, sculpture or collage, irrespective of
artistic quality.” No doubt those last four words are essential if some
of my photographs are to receive protection!
Section 4(1) (2) of the act defi nes “photograph” in a way that does
cover fi lm and digital capture. There are a range of other conditions
that might apply, but they need not concern us here.
But if your photograph is protected, so are the rights of people
such as architects, painters, etchers, lithographers, and others. Thus,
painting or drawing is protected by the defi nition of graphic work
in section 4(2) of the Act, and section 4(1)(b) expressly protects
works of architecture. If you take a picture of a building that was
built to a copyright design or of a painting someone else produced,
who owns the copyright (Figure 11.1)—the architect, the painter,
or you, the photographer? This is often at the center of many
microstock-rejection issues.
Everyday you probably see pictures of all kinds of copyright logos
and designs in your morning newspaper and magazines, on the
TV and the Internet, and so on. Most legal systems, and certainly
English and US law, recognize that life would be impossible for
photographers if any representation of a copyright work constituted
an infringement of that copyright. The incidental inclusion of copyright
material is therefore not normally an infringement of copyright. If you
take a picture of someone and behind that person, hanging on the
wall, there is a copyrighted painting or picture of secondary impor-
tance, then there would not be an infringement of the copyright of the
artist or other owner of the copyright in the painting.
If you were to go outside and take a picture of an artistic work or
building subject to a copyright design, the incidental-only restriction
is enhanced by the far greater protection afforded to photographers by
section 62 of the act, which provides the following:
Representation of certain artistic works on public display
(1) This section applies to—
(a) buildings, and
(b) sculptures, models for buildings and works of artistic craftsmanship, if
permanently situated in a public place or in premises open to the public.INFRINGING OTHERS’ RIGHTS 177