References: [2006] ECDR 9
(Austrian Oberster Gerichtshof (Supreme Court)) The court considered a claim to copyright in photographs of grape varieties used as illustrations in a book. They were applying an approach to copyright based on the principle that the work must be the creator’s own intellectual creation.
Held: ‘In accordance with more recent jurisdiction of the finding Senate, photographs are to be considered photographic works in the sense of s.3(2) UrhG (Copyright Law), if they are the result of the creator’s own intellectual creation, with no specific measure of originality being required. What is decisive is that an individual allocation between photograph and photographer is possible in so far as the latter’s personality is reflected by the arrangements (motif, visual angle, illumination, etc.) selected by him. Such freedom of creation does certainly exist not only for professional photographers with regard to works claiming a high artistic level, but also for a lot of amateur photographers, who take pictures of everyday scenes in the form of photos of landscapes, persons and holiday pictures; also, such photographs shall be deemed photographic works, as far as the arrangements used cause distinctiveness. This criterion of distinctiveness is already met, if it can be said that another photographer may have arranged the photograph differently [ . . ]. The two-dimensional reproduction of an object found in nature is considered to have the character of a work in the sense of copyright law, if one’s task of achieving a representation as true to nature as possible still leaves ample room for an individual arrangement [ . . ].
This case is cited by:
- Cited – Temple Island Collections Ltd -v- New English Teas Ltd and Another PCC (Bailii, [2012] EWPCC 1)
The claimant asserted infringement of their copyright in a photograph. It showed the Houses of Parliament in black and white with a London bus in red. The original action had been settled and the proposed image withdrawn as a copy. The defendants . .