IV. UNCOPYRIGHTED PHOTOGRAPHS AND UNPROTECTED ELEMENTS
There is a widespread belief that all photographs are protected by United States copyright law (178)--what Eva Subotnik calls a "tradition of near-presumptive copyright protection" for photographs. (179) Indeed, this belief often produces absurd results. For example, the assumption that all photographs are copyrighted, and therefore owned by someone, seems to be the foundation for a bizarre claim in 2011 by a news agency that it owned photographs of a macaque monkey taken by the monkey itself when a camera was accidentally left where the simian could access it. (180)
But a large percentage of the world's photographs are likely not protected by American copyright law because the images lack even a modicum of creativity; this should also be true of any national copyright laws that apply an "intellectual creation" standard. Indeed, as digitization makes photography more and more ubiquitous, we have probably already crossed a threshold beyond which most of the world's photographic images are not truly protected by copyright. (181) Saying that many photographs are not protected by copyright does not detract from the profoundly democratic character of copyright because it still says that every (human) photographer is capable of producing copyrighted works. Let us consider a few examples.
A. Completely Unprotected Photographs
It is important to recognize that where the content of the photograph has an independent reality, and the photographer seeks only to achieve and does in fact achieve an accurate representation of that independent reality, there is a good chance that the photograph has no copyright protection at all. Judge Lewis Kaplan reached this correct result in the 1999 case of Bridgeman Art Library, Ltd. v. Corel Corp., (182) in which the library tried to assert copyright over photographic transparencies of paintings that were in the public domain. The goal of the choices made in lens, focus, lighting, angle, and so on had been exclusively to produce extremely accurate representations of the paintings: "[P]laintiff by its own admission ha[d] labored to create 'slavish copies' of public domain works of art." (183) Kaplan concluded that "[w]hile it may be assumed that this required both skill and effort, there was no spark of originality--indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances." (184)
Kaplan's conclusion is the dominant view for copyright law in the United States, and presumably should be for any other jurisdiction that applies an originality standard at least as rigorous as post-Feist American law. As Daniel Gervais writes in a survey discussion of copyright in various jurisdictions, " [A] photographer trying to take a technically perfect picture is not making creative choices...." (185) Similarly, the Nimmer treatise advises that a "photograph should be denied copyright for lack of originality" if it "amounts to nothing more than a slavish copying" and gives the example of "[a] photograph of a painting or drawing" captured in this manner. (186) The Wikimedia Foundation puts the point in more strident terms: "[F]aithful reproductions of two-dimensional public domain works of art are public domain, and ... claims to the contrary represent an assault on the very concept of a public domain." (187) Even in Bleistein, Holmes made it clear that his "very modest grade of art" (188) standard did not extend copyright to "pictures, reproduced by photographic or other mechanical processes, of articles intended for sale, but which obviously have no artistic merit or originality." (189)
Yet there are some nuanced views that continue to lend a basis to support originality-based copyright in faithful art reproductions, and some art museums, foundations, and artist's estates continue to try to assert copyright in such …