By: Manuel Antonio Rodríguez

Digital Self-portrait: Photography, Mere Photography, Work of Art or Simple Exposure

It has been stated, over and over, that the general principles informing Copyright apply, almost in their totality, to all existing digital manifestations, whether these are found online or in other media.

Let’s look at a case of a digital photograph and the hypothesis of a self-portrait. For the moment, ignore those aspects related to the protection granted by the right to an image. Is it entitled to legal protection? It obviously does, as long as it is original. It is a simple answer that may get complicated in some situations.

If we add to the hypothetical that there is a great artist of the digital self-portrait genre [1], we wouldn’t have to do any major analytical effort in order to conclude that their work complies with the originality requirement, or rather —if that work is accompanied by artistic techniques [2] that give it features which express the mark of the author—, that they transcend the simple act of capturing an image.

But is there any originality in the majority of self-portraits found on social media? It seems not since what is generally shown is a face, a smile or a corporal expression that could be related to a feeling of toughness, self-sufficiency, boldness, boredom or any other mood.

Whenever an average self-portrait is treated with computer [3] or cellphone [4] applications that allow the manipulation of the image through filters to soften it, eliminate noise, sharpen or blur edges or to add color, it may be considered, according to each case, that the result of this work is a photograph whose characteristics make it deserving of a minimum of originality or, rather, a work of art originating in a photograph that initially lacked this requirement.

This question is not just an academic exercise, especially in countries such as Spain, where there is the concept of “mere photographs [5].” Under Clause 17 of Directive 93/98, in regards to the conciliation of the protection period for Copyright and related rights, «… it is necessary to determine the degree of originality required by this Directive: that, in accordance to the Berne Convention, a photograph shall be considered original if it constitutes an intellectual creation of the author that reflects their personality, without taking into consideration any other criteria such as merit or purpose; that the protection of other photographs should be left to the national legislation [6].»

The Directive includes a subjective thesis for assessing originality when it provides in Article 7th that: «original photographs, understood as intellectual creations of their author, shall be protected in accordance with Article 1. No other criteria shall be applied to determine their right to protection. Member states shall establish protection for other photographs» (emphasis added). No standard exists in the legislation [7, 8, 9] or doctrine that define when we are in the presence of a photographic work or of a mere photography. In general terms, it is argued, without it being exactly true, that the mere and simple reproduction of objects, animals, plants, people or scenery are equivalent to mere photographs.

Other implications of a digital self-portrait in social media may be further discussed but I definitely agree with Rogel [10] who said, «To me, photographs are either work of the spirit and are thus protected, or they aren’t and are thus not protected… the thing that doesn’t make sense is to rule double protection.»

Sources:

Travel image created by Javi_indy – Freepik.com
[1] Cindy Sherman, Nan Goldin, Alexandro Minciotti, Julia Dávila- Lampe, just to mention a few.
[2] Like placking in any of its more than fifteen versions, or horsemaning, or else the popular jumping.
[3] Pic Say, Pic Art, Cymera, After Focus, Photo Wonder, among others.
[4] Such as Photoshop, Pixlr, Pho.to and Gimp, among the most used.
[5] Intelectual Property Law. Book II titled “Of other Intellectual Property Right,” Article 128. Unlike photographic work, where there is originality, mere photographs do not possess a minimum degree of originality, for which reason their rights are limited to 25 years, emphasizing that they lack moral rights, and the creators of these are not regarded as authors but rather as makers.”
[6] Directive 93/98/CEE of the Council, dated October 29, 1993, in regards to the conciliation of the protection period for Copyright and certain related rights. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31993L0098:ES:HTML. Official Gazette No. L 290 dated November 24, 1993 pages 0009 – 0013.
[7] http://www.cerlalc.org/derechoenlinea/dar/index.php?mode=archivo&id=1863
[8] Decision by the Provincial Court of Barcelona, dated February 1, 2005 whereby, in regards to some photographs for a fashion catalog, it established that: “(…) the photograph presented in these proceedings, property of the plaintiff, limits to reproducing the anatomy of the hired model. (…) It is true that there appears the humerus in the torso, but this detail, or the deployment of black & white, or the other circumstances that shape the photography do not allow to appreciate or understand the marks or the personality of its maker…” Other decisions by Provincial Courts of Spain lead to not recognizing as photographic work or as mere photography wedding photography and similar events.
[9] http://www.asesoriayempresas.es/jurisprudencia/JURIDICO/69367/sentencia-ts-214-2011-sala-1-de-5-de-abril-propiedad-intelectual-derechos-de-autor-obras-fot
[10] ROGEL, C (1991). Comentario al Código Civil y Leyes Civiles Especiales. page 188. Madrid, Edersa.