It took eight hours to take the world’s first surviving photo. Taken by Joseph Niépce around 1826 from his study, it shows the courtyard of his apartment.
The world’s first photo.
The photo was taken using a combination of a “camera obscura” and a tin plate coated with lavender oil and dissolved natural asphalt.
In Germany, mineralogist Franz Kobell took the first German photo of Munich’s Frauenkirche 11 years later in 1837.
Needless to say, a lot has changed since then. Copyright law has also developed up to the present day. That was the long journey from photography to becoming a copyrighted work.
New territory photography: the initial approach
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Despite the first German photo in 1837 and the commercialization of photography in 1839, the German legislature took until 1865 before photographs were protected in any way by the “Bavarian Law for the Protection of Copyright in Literary Products and Works of Art”. When photography was born, it was seen primarily as a technical process, not as an art form. This was probably also due to the fact that scientists in particular were using this new technology and were not interested in an artistically presented motif.
Furthermore, the production of photographs was technically very complex at the time and no uniform process had yet been established. Photos only enjoyed protection under the new law if they could be viewed as works of art. This idea of photographs as a new type of art, but not the fundamental need for protection, came into increasing doubt with the increase in new photographic processes that simplified the production of copies.
That is why the “Law Concerning the Protection of Photographs against Unauthorized Reproductions” softened the work of art criterion in 1876. For the first time, the law protected photographs regardless of their creative content. However, this protection was only valid for five years from manufacture.
In 1907 the KUG came along and with it a further development in the perception of photography as an art form. The KUG equated photos with other art for the first time, and photography emerged as a form of work. However, this was not reflected in the legal consequence of the term of protection. This was only valid for 10 years.
Between ancillary copyright law and the character of the work
Historically, a distinction was made early on as to whether photographs constituted a work protected by copyright or whether there was merely an ancillary copyright to them.
An ancillary copyright exists for services that do not meet the requirements for a work within the meaning of the Copyright Act, i.e. are not to be viewed as “personal intellectual creations”, but which are of crucial importance for the mediation of the work and which also appear to be similarly worthy of protection given their immaterial nature. For example, actors in a play receive their own ancillary copyright to the performance, even if it does not itself achieve the character of a work.
The legislation sees reasons for protection primarily in certain personal achievements or in economic, organizational and technical achievements.
The main consequence of the distinction between ancillary copyright law and copyright is the different duration of protection. While copyrights in Germany only expire 70 years after the death of the author, ancillary copyrights generally expire earlier. In the case of ancillary copyrights, the decisive point in time for the start of the period is not the death of the author, but rather, for example, in the case of a photograph, its appearance.
More on the subject of ancillary copyrights:
George Fischer
The start of a new year is something special in terms of copyright law: In Germany, since January 1, 2023, all works whose authors died in 1952 (i.e. 70 years ago) have been in the public domain. But be careful: ancillary copyrights can delay the public domain of later recordings or performances. ” more
Photos today: photograph versus photographic work
Even today, copyright law still distinguishes between simple photographs and photographic works.
Photographs, i.e. photos that do not meet the work requirements, are protected for 50 years after their publication or after production. In contrast to factory security, the technical performance is protected here. There is therefore an ancillary copyright to such photos. However, the demands on technical performance are by no means as high as they were in the early days of photography. Today, anything that is not a mere photocopy can potentially receive an ancillary copyright as a photograph.
Prominent examples of photographs are museum photographs, but satellite photos or selfies can also be included.
More on the subject of photographs vs. photographs:
Maya El-Auwad
When does a photograph reach the so-called “peak of creation” and thus enjoy copyright protection as a work? About a small but subtle difference in image copyright. ” more
First photography, then research data and AI?
Like many other modern art media, photography had to earn its place among the works worthy of protection. Nowadays, very few people would probably question the classification of photography as a work form. A change in consciousness has taken place here, supported by technological and social developments. It remains to be seen whether such a change within copyright law can also take place for other forms of creation using artificial intelligence or in favor of research data that has not yet been protected. It is true that copyright law also partially protects non-creative, but rather technical or economic achievements. Not only for photographs, but also databases. This may lead to calls for a progressive expansion of copyright law. However, the need for protection of a particular service is not necessarily always to be found in copyright law, as this is still primarily intended to protect creative work, despite some softening.
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DOI for this text: · automatic DOI assignment for blogs about The Rogue Scholar
