Courts initial reactions play a major role in the assessment of copyright protection. A quick recognition of pictorial quality can result in an easy finding of originality. Based upon the extremely low threshold, such a quick summation is not surprising or necessarily refutable. However, the blanket assumption of a pictorial quality in photography creates a disparity in copyright protection for works of graphic design, like maps, which may not emit that immediate pictorial or aesthetic quality but may still employ creative choice. Those works that “scream” their pictorial nature get cursory review while the more subtle are being categorized as compilations and subjected to review more akin to the patent standard of novelty than the copyright standard of originality. Professor Christine Haight Farley has noted that “photographs are at once able to be seen as the expression of the photographer who made it, but also as a direct transcription of nature.” In order to streamline copyright protection for visual works, the dual nature of other visual works must also gain such recognition.

Recommended Citation

Williams, Karen D. “Disparity in Copyright Protection: Focus on the Finished Image Ignores the Art in the Details.” American University Law Review 58, no. 1 (October 2008): 169-206.