Copyright Court Ruling

[jet_kit]

The following article was printed in AP and highlights an interesting aspect of copyright law with regard to photography.

Photographers who compose a picture in a similar way to an existing image risk copyright infringement, lawyers have warned following the first court ruling of its kind.

UK souvenir maker Temple Island Collection Ltd has won a ruling against New English Teas which it had accused of breaching copyright by using a photo of a London bus on its packaging.

Welcoming the news, Temple Island Collection's managing director Justin Fielder – who shot the image in August 2005 and then manipulated it using Photoshop – said: 'As creator of the Red Bus image, and originators of the product concept, we gave New England Teas the opportunity to license with us and work collaboratively, but this was declined.'

The case, heard at the Patents County Court in London on 12 January, could have serious implications for photographers, according to photographic copyright expert Charles Swan, a lawyer at Swan Turton, who said: 'His honour Judge Birss QC decided that a photograph of a red London bus against a black and white background of Big Ben and the Houses of Parliament, with a blank sky, was similar enough to another photograph of the same subject matter to infringe copyright.'

He added: 'The decision is perhaps surprising, given the commonplace subject matter of the photographs. The judge himself admitted that he found it a difficult question, but in the end he decided that a substantial part of photograph one [Temple Island's image] had been reproduced in photograph two [New English Teas'].'

Swan warned: 'The Temple Island case is likely to herald more claims of this kind. The judgement should be studied by anyone imitating an existing photograph or commissioning a photograph based on a similar photograph.
'“Inspiration' and “reference” are fine in themselves, but there is a line between copying ideas and copying the original expression of ideas which is often a difficult one to draw.'

Though, in the past, the cost of such court actions has made them 'uneconomic to pursue' this is all about to change, added Swan. 'The UK government has accepted a recommendation in the Hargreaves Report that the Patents County Court… should operate a small claims procedure for intellectual property claims under £5,000.'

Though the images are not identical, the judge ruled that Fielder's composition of the image, to include such features as the 'visual contrast' of the bright red bus and monochrome background, were the photographer's 'intellectual creation'.

Philip Partington, an intellectual property expert at law firm McDaniel & Co, added: 'The action for copyright infringement was the second made by Temple Island Collection against New English Teas.

'Action was first taken in 2010, on discovering a range of products by New English Teas showing a red bus design, which Temple Island Collection and their lawyers felt was a copy of their famous image.'

In an interview with Amateur Photographer (AP) on 26 January, Fielder said that his Photoshop manipulation of the image played a 'key part' in the copyright victory: 'It was the artistic element that got us over the line... That made it more original than just taking a photo.'

Expressing his relief after a 'long battle', Fielder added that, owing to the previous case against New English Teas, he was able to prove that the firm had seen the red bus image at the centre of the legal action.

However, in a further possible twist, Nicholas Houghton, the owner of New English Teas which is based in Coventry, told AP on 25 January that the legal process was ongoing. 'We can't comment I'm afraid,' he said.

In a follow-up phone call, the firm declined to say whether it plans to appeal the decision and refused to discuss the matter further.

[dan123]

Ive been following the Story aswell, Dont Really know what to make of it, I think its a Touch silly. but there you go eh,

[donoreo]

I can see where something like this for packaging on products it makes sense. One copies the look, even a photo, to fool someone into thinking they are buying another. However, just on the basis on a photo being similar, with no other context, is just silly.

[Cathus]

I acn't believe the company wo took the action we the first people ever to produce an image of a London bus colour-popped outside the houses of parliament.

I therefore suggest anyone who did this prior to 2005 sue the company who took legal action.

[bybe]

I agree, outragious

[amk1977]

I totally agree with Garry, someone should slap the Keyring maker with a lawsuit. This ruling is bloody ridiculous and where will it end? Are people going to be hauled into court because their processed image of a well known landmark, is too similar to a published photographer's photo? I think this has the potential to open the door for a lot of law suits and could restrict a photographer's ability to shoot what they like. I hope they appeal this and the ruling is overturned.

[jet_kit]

Always difficult summing up years of legal wrangling in a few paragraphs. Whatever they say, the press normally gets the whole thing wrong and ignore jurisprudence for the sake of a sensational story. I've lost track of the number of times we're told by the newspapers that this or that judge is 'out of touch' etc., but if you look at the case in detail you'll find the judge is very much in touch. They may not hand down the popular judgement, but they are as confined by the law as you and I.
How many times have you read something in the 'Mail' that you actually have first-hand knowledge of, and said to yourself, "They've got that wrong."? Well, imagine that happening with every story they publish and you'll be pretty close to reality.
I'm sure if we looked at this case in greater detail we'll find it's not nearly as clear cut as it appears here. If it was it would have gone away as soon as the suit was filed.

[GeoffWessex]

The lawyers could be left to play on their own if they went to LIDLs and compared most of the labels (particularly on wine, beer and spirits) with the original brands that are being imitated. It could keep them happy and busy for years! Of course, that's if any lawyer has ever set foot in LIDLs - or any other supermarket for that matter.

[jet_kit]

Originally Posted by GeoffWessex

The lawyers could be left to play on their own if they went to LIDLs and compared most of the labels (particularly on wine, beer and spirits) with the original brands that are being imitated. It could keep them happy and busy for years! Of course, that's if any lawyer has ever set foot in LIDLs - or any other supermarket for that matter.

Now then. Play nicely.

[StephenBatey]

This topic has generated a lot of discussion on another forum, with people both for and against.

I am not a lawyer, nor am I legally trained. And I do make mistakes and misunderstand things. That said, the point of the ruling was that the defendent wanted to use the bus image, but didn't want to pay for it, and got what was basically a copy made.

Those in favour of the ruling seem to base their approval on this point; that it means that if you are employed as a photographer, and produce a very creative image that the person employing you loves, then your client can refuse to buy, and knowing what you have produced, steal the ideas and get a cheap copy made.

My reservations about the judgement rest in paragraph 55 of the judge's reasoning, where it appears to be the case that in the event of similar images, the onus is on the defendent to prove that they did not see and copy the original image. It is notoriously difficult to prove a negative. I can prove that a Higgs boson exists by producing one; how do I prove that it doesn't exist? The only safe course would be to work in complete isolation and never look at anyone else's work. But how you could ever prove that you hadn't surreptiously slipped away and looked at the Internet I don't know.

Add to this the government's acceptance of a small claims court for copyright infringement and the increasingly litigious nature of society, if my understanding is correct, then, with respect to Paul Delaroux (whose original phrase I am blatently copying) "from today, photography is dead".