" We can understand," said Mr. Justice Blackburn, " the difference between an original painting or design and a copy of it ; but it is hard to say what an original photograph is. All photographs are copies of some object - such as a painting or statue, and it seems to me that a photograph taken from a picture is an ' original photograph,' so far that to copy it is an infringement of this statute." Every photograph is original if taken by independent effort ; but there is no copyright in a subject, and a copyright photograph does not prevent another being taken by independent effort from the same subject.
In the U.S.A., it has been held that there must be some evidence that the photographer has exercised an intellectual choice of subject-matter, expression, arrangement, light, or other circumstances or conditions which go to the production of an artistic photograph.
Subject to the exceptions mentioned in the act the author of the photograph is to be the owner of the copyright. The judges in applying the old law found some difficulty in defining " author " as applied to photography. " The nearest I can come to it," said Lord Esher, " is that it is the person who effectually is, as near as he can be, the cause of the picture which is produced - that is, who has actually formed the picture by putting the people into position." Lord Bowen thought him the man who " really represents, or creates, or gives to the ideas, or fancy, the local habitation " - who superintends the arrangement, the pose or grouping. So, under the old law, registration of a firm as authors of a photograph taken by one of their employes, at the instance of their manager, was held to be bad ; the employe, not the firm, was the author. But the principal person, under whose immediate direction a photograph was taken, was its author, notwithstanding that another person acting under his direction posed the subject and performed other manual operations. As the duration of the copyright under the Act of 1862 depended on the life of the author - it expired seven years after his death - photographers employing assistants (and taking assignments of copyright from them) had, as Lord Esher said, to consider their state of health, as well as their skill. But the new act places the law on a more rational basis. The person who was the owner of the negative at the time when it was made, is to be deemed the author of the work. A photograph taken by an assistant or apprentice on behalf of his employer is now the copyright of the employer - except in the case next mentioned.