User:Ilmari Karonen/Paavo Nurmi TN200306

This is a partial English translation of the Finnish Copyright Council statement 2003:6 on File:Paavo Nurmi sytyttää olympiatulen 1952.jpg. Specifically, I've translated the section titled Onko kuva valokuva vai teos ("Is a picture a photograph or a work"), starting on page 3, and the following section Yhteenveto ("Summary") on page 5. I've tried to mostly follow the original phrasing even where it might seem awkward in some places. Insertions in [square brackets] are my own clarifications, not present in the original text. The initial "R" in the text refers to the photographer and submitter of the request for the statement.

Is a picture a photograph or a work?

The basic rule of [Finnish] copyright law is that a picture created by photography is protected as a [simple] photograph in the manner prescribed in §49a of the copyright law. If a photograph expresses particular independence and originality, it may constitute a work in the sense of §1 of the copyright law. All photographs, however fine and significant they may be, cannot be considered works. To be a work, a photograph must express the photographer's originality and independence. The picture must express the photographer's personal character so that, if someone else had undertaken [to produce] it, it would not have turned out the same.

The picture referred to in the request for statement is a photograph of a historically significant moment. It is not, however, original or independent [merely?] due to the fact that it is, as far as is known, the only photograph of the moment when Paavo Nurmi lights the Olympic fire. If other photographers had been there to take corresponding photographs, they would presumably be identical or at least extremely similar to the picture [in question]: same lighting, same background, etc. The situation and thereby the subject of the picture have been given [by external circumstances], R has not been able to influence them.

R has proposed that the uniqueness of the picture is due to the fact that no other photographer managed to catch the event on film. As the situation has been so surprising, and over so quickly, that none of the other photographers present managed to take a picture of it, it should be clear that R cannot have had time to plan or prepare his own picture. The lighting of the Olympic fire is an event which R has managed to record by being in the right place at the right time.

The picture [in question] is a photograph of an event of the day, a news picture of a given situation, not a work expressing artistry and the photographer's own contribution. R has not himself planned the subject of the picture, nor has he therefore been able to influence the picture's content. R has not himself been able to influence the time at which the fire was lit. Therefore he has also not been able to influence the light and shadows in the picture, but rather they have been given. R has also not been able to influence the direction from which Nurmi lights the fire, nor the direction to which wind blows the flames. R has not been able to influence Nurmi's clothes nor the background of the picture. The viewpoint from which the lighting of the fire is pictured is neither original nor characteristic [of the photographer's personality]. The shape and framing of the picture are such that they do not express R's personality.

A photograph may be a work if it expresses the photographer's personal contribution. The picture taken by R, however, does not do so. The picture has been taken of a given situation, without planning the shape and e.g. lighting of the picture in advance. R has not been able to change the content of the picture and take new shots one after another. The production of a [photographic] work is planned carefully in advance, the lights and shapes can be altered to seek the shot most pleasing to the photographer. In the production of a work the photographer affects the content of the picture in ways other than just pressing the shutter release. R has done nothing but mechanically taking the picture. Due in part to his professional skill, but also in part due to luck, the picture has turned out excellent. If the picture had not succeeded, however, R would not have been able to retake it.

Every year there are dozens, if not hundreds, of opening ceremonies to various games. Such ceremonies are photographed routinely, especially those of major games, which are always important events. The photographing of these ceremonies, however, is done to report the notable event to the public. R has been at the Helsinki Olympics as a magazine/news photographer. He has been present to take news photographs of given situations, and he has had no opportunity to affect the content of the pictures, not to mention their lighting and shape.

Summary

The picture referred to in the request for statement is a photograph, not a work, in the sense of the copyright law. R's contribution to the creation of the picture is the mechanical act of taking it. R has not had such personal contribution to the creation of the photograph that it would express originality and independence and would thus reach the level of a [copyrightable] work. R has not been able to affect the content of the picture except for its framing. There has been no time to select a [particular] viewpoint [for the picture] in the short time which the lighting of the fire has taken. The situation appearing in the picture has been given, and also the brief opportunity to succeed in taking the picture has constrained the moment of taking it.

The picture is a significant photograph, and records a notable historical event for future generations, but the significance and historical subject of the photograph nonetheless do not make it a work. The picture has been taken in a situation, which has been given and to which the photographer has been sent on behalf of his employer. The photographer has succeeded in taking the picture, and has created a notable photograph, but the picture is still a [simple] photograph, a news picture whose value has increased over time, not a work in the sense of §1 of the copyright law.

The fact that no other pictures of the same situation are known to exist, and that the picture has therefore acquired great significance, does not however replace the photographer's contribution, nor the photographer's independence and originality, required for passing the level of a [copyrightable] work.

Translator's notes

In the text above, I've consistently translated the Finnish words kuva and valokuva as "picture" and "photograph" respectively, even where the former was probably sometimes only intended as an informal shorthand for the latter. The original text does seem to consistently use the longer word when referring to ("simple") photographs the particular sense of §49a of the copyright law, so I believe this choice to be reasonable.

The original text uses the word valotus, normally used in photographic jargon to mean "exposure" (of film to light), where the word valaistus ("lighting") would seem to make more sense in context. I've taken the liberty of translating valotus consistently as "lighting" above, but the possibility of an alternative interpretation should be kept in mind. (The word "lighting" also appears above in the sense of "ignition", as in the phrase "lighting of the Olympic fire", but those uses should be obvious from context.)

The word annettu ("given", "granted") is used in the original several times to describe a situation or scene as being out of the photographer's control. I've translated it as "given" and appended a clarifying note "[by external circumstances]" to the first occurrence.

The phrase omaperäisyys ja itsenäisyys ("originality and independence") occurs with minor variations several times in the original text, both in reference to works (in the broad sense) as well as to their authors. I've chosen to translate it literally in all cases, as the result seems to me no more (or less) awkward or ambiguous than the original, but I suspect that phrases like "an author's independence" ought to be interpreted as something more like "an author's independent creative contribution".

I've used the rather informal word "shot" as the translation for the rather formal otos ("take" in cinematography, "sample" in statistics; literally "that which is taken"). I believe this to be the most accurate translation in the context of (still) photography, but the difference in register may be worth noting. (The more formal "exposure" would've been a possibility, but I chose to avoid it due to possible ambiguity with valotus as noted above.)