given up photography, or died. In the absence of a licence, it will be an infringement of copyright in the photographs to copy them. When someone dies the rights will have transferred to someone else, perhaps through testamentary deposition (a will) or by inheritance. If there was no will, or if the photographer has not specified where the rights in the material should go, then the normal rules of inheritance will apply (although these rules are not specific to copyright and legal advice should be sought). Scanning old family photographs, without permission, to a digital file for personal use is prima facie an infringement of copyright. Certain photographs may not be protected by copyright. Section 171(3) of the Copyright, Designs and Patents Act 1988 gives courts jurisdiction to refrain from enforcing the copyright which subsists in works on the grounds of public interest. For example, patent diagrams are held to be in the public domain, and are thus not subject to copyright. Infringement Infringement of the copyright which subsists in a photograph can be performed through copying the photograph. This is because the owner of the copyright in the photograph has the exclusive right to copy the photograph. For there to be infringement of the copyright in a photograph, there must be copying of a substantial part of the photograph. A photograph can also be a mechanism of infringement of the copyright which subsists in another work. For example, a photograph which copies a substantial part of an artistic work, such as a sculpture, painting or another photograph (without permission) would infringe the copyright which subsists in those works. However, the subject matter of a photograph is not necessarily subject to an independent copyright. For example, in the Creation Records case, a photographer, attempting to create a photograph for an album cover, set up an elaborate and artificial scene. A photographer from a newspaper covertly photographed the scene and published it in the newspaper. The court held that the newspaper photographer did not infringe the official photographer's copyright. Copyright did not subsist in the scene itself – it was too temporary to be a collage, and could not be categorised as any other form of artistic work. Richard Arnold has criticized the protection of photographs in this manner on two grounds. Firstly, it is argued that photographs should not be protected as artistic works, but should instead be protected in