I guess I'll copy and paste this again since it must have gotten blacked out or something. This is the response the US copyright office sent when this very scenario was posed to them:
First, we apologize for the long delay in responding to your inquiry. Initially, your inquiry was given to one of our new Information Specialists who is still in training. That specialists needed to consult a trainer for help in answering the question. Unfortunately, the email was subsequently misplaced and not found until yesterday.
The answer is relatively simple, but since you've waited so long, we'll give you the full answer, plus the historical background to the answer. The short answer is in the paragraph below. But, if you're interested in the legal history, we've included the background for you. Again, our sincerest apologies for such a lengthy delay in responding to you.
508.01 of Compendium II of Copyright Office Practices states, that to be entitled to copyright registration, a photograph must contain at least a certain minimum amount of original expression. Generally, original photographic authorship depends on the variety and number of the elements involved in the composition of the photograph. However, the nature of the thing depicted or the subject of the photograph, as distinguished from its composition or arrangement, is not regarded as a copyrightable element. Original photographic composition capable of supporting registration may include such elements as time and light exposure, camera angle or perspective achieved, deployment of light and shadow from natural or artificial light sources, and the arrangement or disposition of persons, scenery, or other subjects depicted in the photograph.
This long standing practice at the Copyright Office, gets its start from the Supreme Court decision of Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).
Napoleon Sarony filed a copyright infringement suit against the Burrow-Giles Lithographic Company, which had marketed unauthorized lithographs of Sarony's photograph of writer Oscar Wilde, titled "Oscar Wilde No. 18." Sarony was a well known photographer in the 19th century. Burrow-Giles Lithographic Co. argued, photography was merely a "mechanical process" which does not enjoy copyright protection.
In this case, the Supreme Court upheld the trial courts findings that Sarony had, "entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation" produced the photograph. This control that Sarony exercised over the subject matter, in the view of the Court, showed that he was the "author" of "an original work of art…"
In looking at the mechanical process of taking a photograph and deciding on who is the "author" of a photograph, the Supreme Court quoted a British court decision in Nottage v. Jackson, 11 Q.B. Div. 627, involving a case that aimed at determining who is the author of a photograph. Counsel argued, "…the person who has superintended the arrangement, who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be-the man who is the effective cause of that." The Justices in that court agreed; Lord Justice COTTON said: 'In my opinion, 'author' involves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph;' and Lord Justice BOWEN said that the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination."
In the decision and narrative of the Supreme Court in the Burrow-Giles v. Sarony case, the court, as far back as 1884, recognized that authorship of a photograph was not the mere pushing of a button, but rather the authorship of a photograph lies in the control of numerous elements chosen by the photographer that leads to the resulting image.
John A. Saint Amour, Supervisory Copyright Information Specialist
U.S. Copyright Office
Attn: Public Information Office-LM401
101 Independence Avenue, S.E.
Washington, DC 20559-6000
Phone: 877-476-0778 (toll free) or 202-707-5959
I'm sure i could put that in giant red blinking sized 157 font and people would still miss it, but there it is. Pushing the button is not sufficient for copyright.