Research On The Originality Of Photographic Works

This article is based on a concrete analysis of the practice and theory of the originality of photography works and the empirical analysis,it concludes that there are problems in the determination of originality of photography works in judicial practice.The originality of the work determines the root cause of the predicament.The article believes that the elements of the originality determination of photos should be set according to the objective process of photo creation,and recommendations are made for the originality of photography works.The first part of the article elaborates the relevant theories of the originality of photography works.The article analyzes the legal interpretation and originality requirements of photography works.It is pointed out that the originality requirements of photography works in China can be understood as "independence complete" and "creativity".There is not much controversy in independence complete.For "creativity" requirements,opinions are divided into four categories: "sweat of the brow",a small amount of creativity,a certain degree of intellectual creation and the personality of the author.The article makes a comparative study of the theory and practice of different legal systems in the nature of works and the determination of originality,and provides a reference for the originality of photography.The second part of the article bases on statistical analysis of photography works,it is believed that most courts intentionally evade the substantive examination of the originality of photography works involved in the trial or judgment.The article points out that the originality of photography works does have a vague area in judicial application.The reason is that the existing standard theory of originality has the disadvantage that it cannot be practically applied when applied to photography works.The third part of the article analyzes the specific conflicts between the verdicts that have come into effect and the original intent of the legislation,and clarifies that the existing theories fall into the dilemma of “hollowing-out” judgment standards when applied to the interpretation of originality of photography works.This dilemma also includes two aspects.One is that China's copyright law does not include pictures or photos into the protection of neighboring rights,so that some photos that do not have sufficient originality may fall into an unprotected situation.The other is that the production form of photography works leads to It also has a certain dilemma when judging originality.Existing theories have excessively incorporated the technical andmechanical intellectual achievements that produced photography works into the category of creative selection of photography works,alienating "arbitrary selection" in the process of photo production into " creative selection" makes it difficult for the trial logic to rule out the originality of any photo.The fourth part of the article analyzes the originality that can be imparted by the specific behaviors and selections of each stage of the photographic work by deconstructing the behavior pattern of shooting and combining existing theories,and transforms the originality influence of each stage on the photo into quantifiable conditions.For the necessary conditions,sufficient conditions,gain conditions,and exclusion conditions,the conditions that affect the formation of the photo are then decomposed into creation awareness,creative preparation,framing angle,composition,artificial parameter control,post-processing,overall aesthetic perception and creation of publication.These eight types of abstract elements are then incorporated into the system of evaluation formula according to the category of the photo.The four types of conditions are used to construct the standard evaluation formula for the originality of photography works involved in the judicial practice.