The Author Was Not an Author: The Copyright Interests of Photographic Subjects from Wilde to Garcia

Toward the end of his dissent in Garcia v. Google, Judge Alex Kozinski remarked that “[w]hen modern works, such as films or plays, are produced, contributors will often create separate, copyrightable works as part of the process.” Judge Kozinski’s characterization of plays (or even films) as “modern works” opens the door to an examination of that claim with respect to another genre of modern work: the photograph. This essay focuses on the treatment of claimed authorial contributions by photographic subjects to the photographs in which they are portrayed. It traces the analysis of this issue from the early photography cases (and provides the relevant litigated images) to present times. What emerges is a forceful line of precedent that largely did not consider, accept, or emphasize a photographic subject’s authorial contributions to a finished photographic image. Coming full circle, I argue that longstanding judicial instincts on this front may help explain the outcome in the Garcia case.