UK court: similar photo is copyright infringement

[Doug Pardee]

This is in the UK, and it's about photos being used to identify a product, so it's not (at this point) a problem the average photographer needs to worry about. But you should at least be aware...

In a case before the Patents County Court in London, the judge has ruled that a Photoshop composite containing a color image of a red double-decker Routemaster bus along with B&W images of Big Ben and the Houses of Parliament, being used to identify New English Teas, was ripped off from a similar (but not identical) photo being used on a line of souvenirs produced by Temple Island Collection.

A good part of the decision hinged on how the two photos came to exist. The "original" was taken as a single photo and edited for selective coloration of the bus, blanking out the sky, removing some people, and a few other touches; the "copy" was created by combining pieces of four photos including stock photography.

Some interesting bits from the ruling:

What then is the scope of photographic copyright?

The question is answered by drawing attention to three aspects in which there is room for originality in photography:

i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;
ii) Residing in the creation of the scene to be photographed;
iii) Deriving from being in the right place at the right time.

The present case also illustrates what could be a fourth category which could be added ... Mr Fielder's manipulations [on the original] do not easily fall into any of these three headings although they could be regarded as an extended form of type (i). It may be noted on the facts of this case that Mr Fielder's manipulations were not just matters affecting the colouring and contrasts in the image, they also had an effect on the composition itself, since people were removed from the foreground.

Mr Fielder's [original] image is not what I will call a mere photograph; by which I mean an image which is nothing more than the result of happening to click his camera in the right place at the right time. I do not need to grapple with the scope of copyright protection arising from such a photograph. Mr Fielder's image could perhaps best be called a photographic work; by which I mean to emphasise that its appearance is the product of deliberate choices and also deliberate manipulations by the author. This includes choosing where to stand and when to click and so on but also includes changes wrought after the basic image had been recorded. The image may look like just another photograph in that location but its appearance derives from more than that.

I sympathise with Mr Houghton in his wish to use an image of London landmarks. He is free to do so. There are entirely independent images of the same landmarks available to be used which predate publication of Mr Fielder's picture. But the defendants do not want to use those, no doubt for their own good reasons. Perhaps they did not look as attractive as the claimant's image? The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe. It may or may not have the same appealing qualities as the claimant's image. Even if it did they would be the result of independent skill and labour employed by the independent photographer. Again however that is not what happened.

http://www.amateurphotographer.co.uk...ws_311191.html

[doctorjames]

Well this is very interesting...

I cant wait to see if they appeal....

They have fantastic grounds to do so, and I suspect this may be in the pipeline

[Jim Bryant]

Hell yes!!!!!!!! It's not only the photo, but the images concept.

[doctorjames]

from the whole ruling, it would appear to be that there would be no infringement if the image had been 'captured' rather than created.

I have to say I am surprised by the initial ruling, because there are numerous examples of selective colouring being employed on london landmarks or icons, a lot of which I would think pre-date the 'original' here..

[gturner]

So they have effectively own the copyright to all future selective colouring of a red bus with HOP in the background. Interesting.

Fantastic! I hope that is a lesson to selective colourants! (is there any other term or did I just invent one.
There are not many other places to stand if you want a bus and HOP picture, with some sense of scale.

[Doug Pardee]

Originally Posted by doctorjames

from the whole ruling, it would appear to be that there would be no infringement if the image had been 'captured' rather than created.

That, and perhaps the history. The defendant had used the actual photo on tea cartons, was contacted by the plaintiff, and an agreement was drawn up. There followed a disagreement over the agreement, in which the plaintiff said they were owed £2000 but the defendant said it was only £500. That disagreement ended up in the same court and presided over by the same judge as the current suit.

So the defendant stopped using the original photo on their tea cartons, and instead created a similar image. As quoted above from doctorjames, a good part of the judge's finding is that the new image wasn't photographed, but rather was created from bits and bobs in a clearly intentional duplication of the original.

[Doug Pardee]

Originally Posted by gturner

So they have effectively own the copyright to all future selective colouring of a red bus with HOP in the background.

Please read the ruling. That isn't what it says. It says that the violation was the intentional duplication of that specific image, by non-photographic methods.

As I quoted in my original posting: "The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe."

[Jim Bryant]

Originally Posted by Doug Pardee

Please read the ruling. That isn't what it says. It says that the violation was the intentional duplication of that specific image, by non-photographic methods.

As I quoted in my original posting: "The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe."

Same thing with the Obama "change" image, where Mannies photograph showed up on t-shirts and posters "changed" by an artists.

[doctorjames]

Originally Posted by Doug Pardee

That disagreement ended up in the same court and presided over by the same judge as the current suit.

Yes, I dont think this helped. I would have been pretty wound up if I was the judge.

Personally I dont think the defense did a very good job. They should have leapt on the fact that one is a digitally manipulated photograph, and that the other is an artwork or collage based on 4 different photographs.

If they had sketched the background, and added the routemaster, there wouldnt have been an infringement

[doctorjames]

I did find it slightly amusing that the original aparently took 80 hours to shoot and photoshop. He must have been pretty handy with photoshop