Molly Torsen Stech | 25 Vand. J. Ent. & Tech. L. 53 (2023)

Copyright law provides that when two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be situated in full light or obfuscated by shadow, among many other options. A subject’s rights in photographs have not been fully explored. The Supreme Court avoided deciding the issue more than a century ago. Today, paparazzi and celebrities make high-stakes legal assertions about copyright infringement and fair use through litigation.

Certain portrait photographs of an individual person may be works of joint authorship, the co-authors being the photographer and the subject. While it is established across the globe that photographs merit copyright protection, and that the rights in a photograph generally vest in the photographer, it is a mistake to allow the authorial inquiry into every photograph to end there. Copyright law is accustomed to doing the hard work of specific factual analysis; its fair use doctrine requires such scrutiny, and an apportionment of joint authorship should be no different. The construction of joint authorship is legally flexible, at least in the manner that it is codified. This Article proposes making better use of a framework that already exists in US copyright law. No legislative change is necessary, but courts’ current interpretation of joint authorship requires recalibration to permit more flexibility. Such a stance will more accurately reflect how creative people work together and will bestow rights more fairly and on creative parties, which will sometimes include photographic subjects.