Besides Wikipedia, my main hobbies are bonsai and photography. Sometimes I combine all three, taking pictures of bonsai and uploading them to Wikimedia Commons. So the question I have is, does styling a bonsai create a copyright? Can I take a photo of someone’s tree and do what I want with it (e.g., license it freely on Commons), or do I need the owner’s permission?
At first blush, the answer would seem to be yes, bonsai is eligible for copyright. It is a form of visual art, often compared to sculpture. A good bonsai is distinctive, demonstrating the creative vision of the artist who made it.
On the other hand, it is a living thing, and a core principle of bonsai is that it is never finished and always subject to change; according the U.S. Copyright Office, “Copyright protection subsists from the time the work is created in fixed form.” What is meant by fixed form? A bonsai’s form is never truly fixed (in the same way that one’s face is never fixed but develops over time), but (like a face) a well-styled bonsai may be recognizable in the same general form over the course of decades, or even centuries. That’s more than can be said of many traditional works of art, which for some media may deteriorate beyond recognition in just 10 or 20 years. But bonsai typically evolved to a roughly “final” form over the course of many years. When, during this process, is a copyright created? If photograph a bonsai one year and it’s very different the next, I essentially took a snapshot of something that was not at the time in a fixed form. But if I take a picture one year and the bonsai is basically the same the next, does that mean it was copyrighted? Does keeping a bonsai as it lives and grows generate a continual series of copyrights, such that the centuries-old trees that get handed down from generation to generation can never go out of copyright as long as they are alive?
For my part, I’ve assumed that bonsai are not eligible for copyright. Mainly, I do this because there is no tradition within the bonsai community of claiming copyright for bonsai, only for particularly (fixed) pictures of them. If anyone has a more definitive answer, or informed thoughts on the matter, please let me know.
