Point and Shoot: Originality, Authorship, and the Identification of the Copyright Work in Modern Photography

Abstract

This article explores how profound technological developments in photography have problematised concepts of the photograph, authorship, and originality in Australian copyright law. These developments have resulted in highly automated photography and ubiquitous photographs, inviting questions about what constitutes a ‘photograph’ as defined in the Australian Copyright Act 1968 (Cth) (‘Copyright Act’), when a photograph is sufficiently original, and how the definition of the ‘author’ of a photograph as the person who ‘took’ it should be interpreted. The article is the first to analyse these issues, ameliorating the relative dearth of serious scholarly investigation of the contemporary photograph under Australian copyright law and a paucity of judicial attention. It considers the meaning of ‘photograph’ and ‘photography’ under the Copyright Act and explains how software and new practices in a ‘post-photography’ world challenge those concepts. It then explores photographic originality and investigates how increasingly automated modes of photography diminish, if not eviscerate, originality in contemporary photography. The article then focuses on photographic authorship, interrogating the statutory definition of the author of a photograph as ‘the person who took it’. The article also proposes further research into ways of better aligning copyright law with contemporary photographic technological developments and artistic practice.