Well, maybe be and the Court will determine this precise issue for us. However, I do believe they are expressive conduct and a contrary result would be inconsistent with what federal courts have said regarding photographs and copyright and some of the older cases decided by the U.S. Supreme Court regarding expressive conduct in photographs.
In order for a photograph to receive copyright protection requires, among other elements, expression. Federal courts have indeed found photographs to contain expression and to be expressive, i.e. contain and convey a message/speech. Federal courts have also discussed how this is accomplished.
Federal courts have historically applied a generous standard of originality in evaluating photographic works for copyright protection. See, e.g., Ets-Hokin, 225 F.3d at 1073-77; SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 305 (S.D.N.Y. 2000). In some cases, the original expression may be found in the staging and creation of the scene depicted in the photograph. See, e.g., Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444, 452 (S.D.N.Y. 2005). But in many cases, the photographer [**13] does not invent the scene or create the subject matter depicted in it. Rather, the original expression he contributes lies in the rendition of the subject matter–that is, the effect created by the combination of his choices of perspective, angle, lighting, shading, focus, lens, and so on. *Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, (7th Circuit) *
Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) “Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”).
In the context of photography, it has been long established that copyrightable expression includes selecting and arranging the subject matter, deciding on the composition and camera angles of the photograph, and determining the lighting as well as when to take the photograph. Brod v. Gen. Publ’g Group, Inc., 32 Fed. Appx. 231, (9th Circuit). Citing a U.S. Supreme Court decision of Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53.
It is, therefore, much more important that when the supposed author sues for a violation of his copyright, the [*60] existence of those facts of originality, of intellectual production, of thought, and conception on the part of the author should be proved, than in the case of a patent right.
In the case before us we think this has been done.
The third finding of facts says, in regard to the photograph in question, that it is a “useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same . . . entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.”
These findings, we think, show this photograph to be an original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish and sell, as it has done by section 4952 of the Revised Statutes.
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53.
Based on these rulings, photographs of the kind Elane Photography was asked to do are not “purely commercial activity” when and where her choices and decisions are “the effect created by the combination of his choices of perspective, angle, lighting, shading, focus, lens, and so on.” When she chooses the perspective, angle, lighting, shading, focus, lens, and so on, then we have expression, speech, captured in a medium, the medium being the photograph, according to these copyright cases.
It would indeed be an odd proposition for expression and speech to exist in photographs for copyright protection but not for the 1st Amendment Free Speech Clause.
I think the better and stronger position is these photographs, photographs of what is called “commitment” pictures, engagement pictures, wedding pictures, in which the photographer controls the angles, editing, lighting, shading, focus, lens, arrangement of people, where they stand, how close, how far apart etcetera, lighting, then we have expressive conduct.
In my opinion, it is speech.