Copyright and photos taken with a smartphone

Photos taken with a smartphone and copyright, and why not?

I was recently asked if photos taken with a smartphone are subject to copyright protection.

My first reaction was to answer: "and why not?"

Indeed, photos are, like other literary and artistic works, protected by copyright, provided of course that they are original.

However, the simple fact that the photos are taken with a smartphone does not detract from the possibility of originality.

Copyright and photos: reminder of the applicable principles

First, let's get back to the basics, namely copyright protection for photos in general.

The Court of Justice of the European Union confirmed the principle of protection in a Painter judgment, C-145/10.

In this Painter judgment, the Court indicated that, like other works, photos could be protected by copyright as long as they were original objects, namely:

• intellectual creations specific to their author;
• in short: that the photos reflect the personality of their author;
• Even more clearly: that the photos are the result of free and creative choices of their author.

In other words, if when he takes a photo, the author can make free and creative choices, his photo is original because, by making such choices, he puts his personality in the photo he takes.

In the same Painter judgment, the Court explains how the author of a photo can make free and creative choices. According to the Court, the author can, for example, make free and creative choices:

• by staging the object he is going to photograph;
• by asking the person they are going to photograph to strike a particular pose;
• by choosing a particular lighting;
• by taking his photo with framing or a particular angle of view;
• by creating a special atmosphere before taking your photo;
• By retouching his photos with software.

These are only examples and the Court did not claim to be exhaustive. So there are certainly other ways to make a photo original (i.e. other ways to make free and creative choices when taking or editing a photo) and to benefit from copyright serial registration protection on the photo. Photo thus taken.

Applying these principles to photos taken with a smartphone

The Court of Justice made no distinction according to the type of camera with which the photo would be taken.

And for good reason, it does not matter.

What matters in order to benefit from copyright protection is to make free and creative choices; that is to say for the photographer to infuse his personal touch to the photo he takes - regardless of the device with which he takes his photo.

It is completely irrelevant, for the purposes of copyright protection, to take a photo by means of a digital camera; of a compact; a bridge; of a reflex; a semi-reflex; a Polaroid or… a smartphone.

Even with a camera that allows only a few adjustments, when taking the photo, it is still possible to stage the object to be photographed, to ask the person to be photographed to take a particular pose, to choose a special lighting...

And, to come back to smartphones, these (in any case the most advanced) already allow, in themselves, a lot of settings before the photo is taken; then, once the photo is taken, they also allow retouching the photos via options directly available in the photo application; without forgetting that it is always possible to download additional applications.

In short: if free and creative choices are made by the owner of a smartphone when he takes his photo, it will be original and protected by copyright.

Dennis White is an Llb graduate. He is currently working in a trademark registration service. He is also working as a freelancer for producing content, writing documents for companies, and also social media content