The first question must be: in what respects is the Garnett Photograph protectible?
1. Protectible Elements of Photographs
It is well-established that "the sine qua non of copyright is originality" and, accordingly, that
"copyright protection may extend only to those components of a work that are original to the
author." 'Original' in the copyright context "means only that the work was independently created by
the author (as opposed to copied from other works), and that it possesses at least some minimal degree
of creativity."
It sometimes is said that "copyright in the photograph conveys no rights over the subject matter
conveyed in the photograph." But this is not always true. It of course is correct that the photographer
of a building or tree or other pre-existing object has no right to prevent others from photographing
the same thing.2
That is because originality depends upon independent creation, and the
photographer did not create that object. By contrast, if a photographer arranges or otherwise creates
the subject that his camera captures, he may have the right to prevent others from producing works
that depict that subject.3
Almost any photograph "may claim the necessary originality to support a copyright." Indeed,
ever since the Supreme Court considered an 1882 portrait by the celebrity photographer Napoleon
Sarony of the 27-year-old Oscar Wilde,4
courts have articulated lists of potential components of a
photograph's originality.5
[*451] These lists, however, are somewhat unsatisfactory