“Photos of Shower Drains”
摘要
In accordance with the Painer judgment, three “moments” or “phases” can be defined in the context of portrait photography when free and creative choices are made (or can be made) by the photographer: The preparatory phase: in this phase, the photographer chooses (or may choose) the background, the subject’s pose, and the lighting. The taking of the photograph: in this phase, the photographer chooses (or may choose) camera settings, angle of view, and the atmosphere created. The development phase (or editing phase): in this phase, the photographer chooses (or may choose) various developing and/or editing techniques (either with or without software support). The free and creative choices are (to a greater or lesser extent) determined by the purpose of “product photographs”. Notwithstanding, the nature of the photograph does not “in itself” mean that it has no originality (copyright protection). For such a work to be entitled to copyright protection, the (product) photographer must, in one (or more) of the abovementioned phases, transcend the narrow purpose of (product) photographs by expressing his/her personality in them (by free and creative choices). This can be done by deviating in one or more of the phases from the standards/norms that for functional reasons are considered appropriate, thus revealing their “personal touch”. As every photograph taken with direct human intervention involves choices to a greater or lesser extent, what matters is whether those choices are free and creative. The effort involved in minimal editing of photographs (acquired by another party) does not counterbalance the initial effort (investment) in obtaining them, their use (here: in promotional material) thus being parasitic in terms of competition law.