[The IPKat] [Guest post] Copyright in photographs: a pivotal moment?

[Eleonora Rosati]

[Guest post] Copyright in photographs: a pivotal moment?

 Eleonora Rosati Sunday, December 21, 2025 - copyright, Guest post, Mio konektra, originality, photographs, Robert Dickens, UK

The IPKat has received and is pleased to host this guest contribution by Katfriend Robert Dickens (White & Case), revisiting the vexed issue of copyright protection of photographs. Here’s what Robert writes:

Copyright in photographs: a pivotal moment?

by Robert Dickens

This post examines the key arguments of my article recently published in EIPR, which discusses the protection afforded under UK copyright law to photographs reproduced in part. This post also contains further reflections in light of the CJEU’s recent judgment in Mio/konektra, C-580/23 and C-795/23 [IPKat here], which is likely to be persuasive as to the meaning of originality in the UK (as Lionel Bently says here).

Photographs, originality and subsistence

The “author’s own intellectual creation” (AOIC) test applies to the assessments of originality and substantial part for copyright works. Photographs are a challenging medium to assess using this test.

By way of illustration, the below comparison is from the Getty Images complaint in US proceedings against Stability AI and shows an original Getty Images photograph on the left and an output generated by Stable Diffusion on the right.

Getty Images (US), Inc. v. Stability AI, Inc., 1:23-cv-00135, (D. Del.), Complaint, page 18.

At the point of assessing originality for the purposes of copyright subsistence, the reality is that some photographs are taken with little thought, while others involve significant creative choices. Once a photograph reaches the level of “originality” required for subsistence, UK law does not distinguish between photographs that are more creative or less creative – they are all granted copyright protection.

If these Kat photos are original, are they deserving of the same copyright protection? At the point of assessing substantial part for the purposes of infringement, the application of the AOIC test becomes difficult: parts of the photograph arising from the author’s creative choices must be distinguished from those that do not. Only once this analysis has taken place can it be determined whether a “substantial part” (being a part resulting from the AOIC) has been taken. In Mio, the CJEU held that originality cannot be derived from “choices which, while free, do not bear the imprint of the author’s personality by giving that subject matter a unique appearance”. This may not be significantly different from pre-existing CJEU case law that referred to “stamping” a work with the author’s personal touch (see, e.g., Painer, C‑145/10), but the AOIC test now more strongly echoes the UK’s traditional originality test that the necessary labour, skill and judgment had to result in something of “visual significance” for artistic works (Interlego AG v Tyco Industries Inc [1989] AC 217).

The claimant’s table in Mio

Regardless of whether Mio is a substantive shift in that direction and regardless of its level of persuasiveness in the UK, UK courts have readily granted copyright protection to photographs by deeming them sufficiently “original” (see, e.g., Graves’ Case [1869] 4 LRQB 715; Antiquesportfolio.com Plc v Rodney Fitch & Co Ltd [2001] ECDR 5; Temple Island Collections Ltd v New England Teas Ltd [2012] EWPCC 1). This does not appear likely to change. As a result, it is the substantial part test that must do the heavy lifting to ensure the correct level of protection for photographs under UK copyright law.

Finding originality in parts of photographs

Today, generative AI systems produce photorealistic content. Any output alleged to infringe copyright works in a model’s training data is likely to be a question of substantial part, rather than the reproduction of the whole. Given many training data comprise photographs, the correct application of the substantial part test is more important than ever – indeed, this could be a pivotal moment.

In Lidl v Tesco [2024] EWCA Civ 262 [IPKat here], the Court of Appeal explained the general principle that, where creativity is low, the scope of copyright protection is narrow and only close copies will infringe. In relation to photographs, a key question for assessing “substantial part” is: where might that creativity come from?

Laddie, Prescott and Vittoria lists three potential sources of originality in photographs: (i) the effects achieved by photographic techniques, such as shot angle, lighting and filters; (ii) creation of the scene before the camera, such as arranging a group of people; and (iii) being in the right place at the right time to capture “a scene unlikely to recur”.

The third category has been described by Sir Richard Arnold as the “most contentious” and he provides the following view:

Whether the photographer carefully waited for the right moment or whether (s)he caught something beautiful by pure chance, and whether or not there is any prospect of the scene re-occurring, the fact remains that in this sort of case the photographer did not create the scene. Why then should the photographer be protected against reproduction of the scene which does not reproduce the creative elements supplied by the photographer?

Laddie’s third category seems to want to cater for the fact that scenes that are difficult to capture (because of their location or their timing or both) are valuable. Rewarding being in the right place at the right time through copyright may have been permissible under the old “labour, skill and judgment” test, but there is no basis in law for doing so today unless there is also creativity from the author. Laddie’s third category is, therefore, certainly controversial.

However, it is submitted that there is scope for creativity to emerge through being in the right place at the right time. The facts of Temple Island provide a useful illustration. This well-known case concerned a photograph of a red bus in front of the Houses of Parliament (top) and an alleged substantial reproduction of the same (bottom).

The images at issue in Temple Island

From the above, it appears Sir Richard Arnold would take the view that the bus was not within the photographer’s control and so its position is not a protectable element of the original work. This appears to under-protect the creativity of the author: London buses have regular routes – as such, the photographer had the opportunity to choose where the bus would be within the photograph by choosing when to take the photograph. It follows that, despite the photographer having no actual control over the objects within the scene, there was a creative choice – and the elements flowing from that choice are deserving of protection.

Therefore, contrary to Laddie’s expression of the third category, rather than originality arising from a “scene unlikely to recur”, the originality may instead arise from scenes very likely to recur, or at least very likely to occur (such as a process in action). It is submitted that the predictability of the scene developing before the photographer is what permits creativity in choosing the right moment to take the photograph.

It might be suggested that the principle of “waiting for the right moment” is removed from reality and the more likely scenario is that a photographer chooses “the” photograph from among a number of shots taken. However, finding originality from a post-shutter decision would be unsatisfactory: it would mean that a photograph taken may be original or unoriginal, and would remain so until any selection takes place (a bit like Schrödinger’s Kat). Further, such a selection does not alter the appearance of the work and so this approach would certainly be contrary to Mio, if not pre-existing CJEU case law on originality.

Conclusion

There is no basis in law for copyright to protect parts of photographs that do not result from the creativity of the author. Mio makes clear, if it was not before, that that creativity must be reflected in the appearance of a photograph: carefully considered equipment or techniques, for example, mean nothing if there is no resulting visual impact on the photograph created.

It follows that elements of a photograph that derive from being in the right place at the right time should not be protected unless they result from a creative decision. If protection for valuable difficult-to-access scenes is desired, legislative reform may be required. Until then, the substantial part test should be applied resolutely to ensure the right level of copyright protection for photographs reproduced in part. It is submitted that this will avoid an overprotection of photographs that might harm AI innovation or an under-protection that might harm creative industries.

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