Research On The Identification Of Infringement Of Photographic Works

Photographic work is one of the objects protected by copyright law,but it is also a special type of work.Because photographic work has relatively strong technical attributes,and the photographic work itself is a record of the objective world,not the free creation of the author.Therefore,the protection scope of photographic works needs to be limited.Today,with the continuous development of optical lenses and digital image processing technology,the threshold of taking photos is getting lower and lower.At the same time,the development of the Internet has also made the cost of infringement of photographic works getting lower.It becomes much easier to contact with others' photographic works,and the number of infringement lawsuits has increased accordingly.But the identification of infringement of photographic works is more complicated than other types of works.Not only because the subject of a photograph is unprotected fact,but also because the dividing line of protected expression and unprotected idea in photographic works is rather unclear.So it is essential to conduct a more comprehensive discussion on the issue of the identification of infringement of photographic works.This article categorizes photos into three categories based on the composition of original expression elements contained in photographs.They are photographs of rendition,photographs of timing and photographs of creation of the subject.This article discusses the substantial similarity comparison of the three types of photos with reference to the cases of infringement of different types of photographic works at home and abroad.The first chapter of this article discusses existing methods of determining infringement of photographic works and their deficiencies.For the traditional method of determining the infringement of a work,since the photographic work itself is a work of visual art,it is difficult to apply these traditional methods to the photographic work.There are also some loopholes in the rule design of the "silver plate" principle proposed by scholars specifically for the infringement of photographic works.The second chapter of this article discusses the issue of the substantial similarity of different types of photographic works.According to the composition of the original elements,this article divides photographic works into three types.They are photographs of rendition,photographs of timing and photographs of creation of the subject.First of all,for photographs of rendition,because the photographers only truthfully record the objective facts,so the substaintial similarity will only exists when the photograph is directly copied.Secondly,the original elements of timing are non-reproducible,so after excluding these elements the substaintial similarity comparison of photographs of timing is the same to photographs of rendition.At last,for photographs of creation of the subject,the photographers make original arrangements for the scenes and objects,so the protection scope of these photographs cannot be limited to the directly reproduction.But the identification of the substaintial similarity of photographs of creation of the subject is a rather complicated job and needs to be further discussed.The third chapter of this article summarizes the general logic of the identification of infringement of photographic works.The first step is to classify the photos by the original expression elements they contain.Only when both of the photos of the plantiff and defendant are the photograph of creation of the subject,substantial similarity comparison is needed then.Under this circumstance,as the lowest layer of expression,the overall image effect is the main consideration in determining infringement.If the overall image effect of the defendant's photograph is very silimar to the plantiff's,it is more likely to constitute infringement.At the same time,the complexity of the scene arrangement of the photograph is also one of the considerations.The more complex the scene arrangement is,the less similarity of the overall image effect is needed to constitute substaintial similarity.Finally,it can also help by analyzing the attributes of similar parts in the photographic works of both sides.If the similar parts themselves are not the elements of creation of the subject or can't be protected by copyright law,then to determine substaintial similarity,there needs to be more similarity of the overall image effect.