USA – CALIFORNIA Law and Practice Contributed by: Jennifer Jordan McCall, Matt Perotti, Drew Reitz and Ashley E. Huh, Pillsbury Winthrop Shaw Pittman LLP
al international laws may be applicable. For instance, the 1954 Hague Convention establishes protections for cultural property and cultural institutions during war and the 1970 UNESCO Convention prevents the illegal import, export and transfer of cultural property. As discussed above, the United States also has laws that include a range of measures intended to deter the illicit trafficking of cultural property. Additionally, state and local governments likewise protect historic and cultural assets through preservation boards/commis - sions, ordinances and permitting requirements. 8. Photography 8.1 When Are Photographs Protected as Art? The 1976 Copyright Act extends to originators of crea - tive works, including photographers, if the work is an “original work of authorship” that is “fixed in any tan - gible medium of expression”, including pictorial works and satisfies the originality and fixation requirements. In Feist Publications, Inc. v Rural Tel. Serv. Co., 499 US 340, 345 (1991), the Court stated that the original - ity requirement requires the work to be independently created, rather than copied and to possess a minimal level of creativity. The court further stated that the creativity requirement is a low threshold that would be met by a majority of works. In photography, a photographer can show originality through creative and artistic choices, such as select - ing and arranging the subject matter, posing, cam - era placement and angle, framing, lighting decisions, lens selection and timing. Courts have treated these creative choices as protectable. For example, in the case Rogers v Koons , 960 F.2d 301 (2d Cir. 1992), the court held Rogers’ expressive elements, such as composition and lighting, were protected. The fixation requirement requires the work to be “fixed” in a way that is sufficiently permanent, rather than transitory in duration. For photographs, the fixation requirement is generally met when the image is captured in a digital file or film/print. 8.2 Legal Protection for Different Types of Photographs In the United States, even if a photograph is not eligi - ble for protection under the 1976 Copyright Act, the
photograph may be protected under other legal prin - ciples that may restrict the photograph’s use or dis - semination. For instance, contracts and licensing can limit the reproduction or posting of the photograph through contractual terms, without relying on copy - right. Photographs depicting identifiable individuals may be governed by privacy tort and right of publicity/ appropriation doctrines, which may protect individuals against nonconsensual uses of their likeness. Federal trademark law can also apply when an image is used in advertising or promotion. 9. Artworks and New Technologies 9.1 NFTs In the United States, “NFT” (non-fungible token) is commonly understood as a digital asset recorded or stored on a blockchain and associated with a spe - cific asset, such as digital art or media. An NFT differs from other fungible assets, such as cryptocurrency, because each NFT is distinct and not interchange - able. The NFT is usually not the actual asset itself, and purchasing an NFT does not automatically confer ownership rights in the underlying asset. Although not common, the NFT and the underlying asset can be sold together. Typically, the sale of the NFT does not include the underlying asset or any intellectual prop - erty rights in the underlying asset. The intellectual property rights in the underlying asset can also be licensed for certain purposes. 9.2 Counterfeit NFTs It is possible for inauthentic or counterfeit NFTs to circulate. For instance, NFT scammers may cre - ate counterfeit NFTs, fake listings for sale or a fake NFT marketplace that mimics established platforms. Blockchain records do not automatically verify that the minter had legal rights or authorisation to tokenise the associated artwork, brand or collection. As a result, NFT scammers can mint and sell unauthorised NFTs.
219 CHAMBERS.COM
Powered by FlippingBook