According to the "The Illustrated Contents of Each Kind of Works in Paragraph 1 of Article 5 of the Copyright Act" announced by the Taiwan Intellectual Property Office on June 10, 1992, "photographic works" refer to works created by photographic methods, including photographs, slides, and other similar works.

 

Whether the result of a photograph constitutes a "photographic work" protected under the Copyright Act must be determined based on originality. That is, the work must be an original and independent creation completed by the author, sufficiently expressing the author's thoughts and emotions, and exhibiting distinguishable variations from pre-existing works, thereby reflecting the author's personality and uniqueness. If the degree of intellectual creation is so minimum that it precludes the recognition of the author's personality or uniqueness, it does not constitute a work protected under the Copyright Act (see the Supreme Court's Criminal Judgment 111-Tai-Shang-Zi No. 5382).

 

Early judicial opinions, such as the Supreme Court's Civil Judgment 106-Tai-Shang-Zi No. 775, pointed out that if a photographer demonstrates individual and independent creativity in techniques such as scene selection, lighting decision, focal length adjustment, shutter timing, or shutter use, and achieves a certain threshold of creative height, the resulting photograph constitutes a photographic work protected under the Copyright Act.

 

However, recent judicial decisions have exhibited an evolving standard in the assessing the "creativity" for photographic works. The Intellectual Property and Commercial Court's Civil Judgments 113-Min-Zhu-Su-Zi No. 98 dated March 31, 2026 and 115-Min-Zhu-Su-Zi No. 3 dated March 31, 2026, as well as the Shilin District Court's Criminal Judgment 114-Zhi-Yi-Zi No. 13 dated March 26, 2026 all indicate that, with the advancement of modern technology, the determination of "creativity" in photographic works should not be based solely on traditional technical operations, such as adjustment of "aperture, depth of field, light, or shutter speed." Instead, it should re-focus on whether the photographer, during the process, incorporates original ideas and makes choices and adjustments regarding the subject, object, shooting angle, and photographic composition, such that the author's thoughts and emotions are objectively expressed, thereby qualifying for copyright protection. In other words, if the shooting angle, photographic composition, and lighting of a photograph merely truthfully present the actual scene, it does not constitute a photographic work protected under the Copyright Act.

 

Regarding specific case determinations, the Intellectual Property and Commercial Court's Civil Judgments 113-Min-Zhu-Su-Zi No. 98 and 115-Min-Zhu-Su-Zi No. 3 involved photographs of products displayed on or worn on the human body, and photographs simply that place a product in its complete packaging in the center of the frame. The courts held that these photographs merely truthfully presented the actual scene and lacked originality. In contrast, the Shilin District Court's Criminal Judgment 114-Zhi-Yi-Zi No. 13 found that although X-ray film photographs showed the results of dental implants for medical records, the process involved adjustments to the subject, object, and angle, and expressed the examiner's thoughts regarding the medical results, thus possessing originality.