Are product shots protected by copyright?

A recent US decision has confirmed that product shots will normally get the same copyright protection as any other still life shot.

San Francisco photographer Joshua Ets-Hokin sued his client Skyy Spirits for infringement of his copyright in three photographs of Skyy’s vodka bottle. The photographs were straightforward product shots, with the bottle lit from the left to make the right side of the bottle slightly shadowed. In two of the shots, only the bottle is featured; in the third, a martini sits next to the bottle.

A District Court ruled that the photographs were not protected by copyright because they were “derivative works” based on the pre-existing Skyy bottle and the differences between the bottle and the photograph were trivial.

A 2-1 majority decision by the US 9th Circuit Court of Appeals has reversed this. The photographs were held not to be derivative works because they were shots of the bottle as a whole, not merely of its label. The normal standard of originality therefore applied and the degree of creativity required was minimal.

In some European jurisdictions photographers have to demonstrate higher levels of creativity in order to get copyright protection. The Ets-Hokin case confirms that the US position is similar to that in the UK, where the creativity threshold is also minimal. It follows hard on the heels of the Antiquesportfolio case in which an English court confirmed that photographs of three-dimensional antiques were protected by copyright (see our July 2000 early warning).

The Ets-Hokin case also gives an insight into trade practice in America concerning product shots. Ets-Hokin retained copyright in his shots, licensing limited rights to his client Skyy. Skyy claimed (despite having used them) that it found his shots unsatisfactory and therefore commissioned three other photographers. Skyy tried to buy all rights in their shots. Two of the other photographers were willing to sell all rights, but one other photographer also insisted on licensing.

The other photographs apparently mimicked Ets-Hokin’s shots. Ets-Hokin also sued the president of Skyy Spirits, another Skyy employee and Skyy’s advertising agency, but did not name the other photographers as defendants.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.