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Sunday, 29 January 2012 00:10

A copyright judgement of great concern to photographers

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It would seem that when the rules of copyright are rigorously applied, common sense goes out the window.

Take a look at these two photographs.

One would argue there are certain similarities.  They are both monochrome images with a red London double-decker bus.  They both also show the UK Houses of Parliament and Big Ben.  In both cases the parliamentary buildings reduce to a vanishing point to the left of the image.

But that's about it.

The differences are just as strong.  While it is clear that the bus is traversing Westminster Bridge in Photograph 1, it is impossible to determine this in the second image.  In Photograph 2, the bus is quite clearly a Routemaster (one of the old busses that were recently retired from service) while in the first image the bus is a considerably newer model (oddly, the judge presiding over the trial refers this also as a Routemaster, when clearly it is not).  In addition, the second image was taken from a position much closer to the tower, using a wider-angled lens.

Finally, I'd invite readers to examine the trees immediately behind the tower.  In the lower image, it's a case of "what trees?"

In summary, the lower image seems to be significantly older than the upper image.

Now for the fun part.


 

Temple Island Collection Ltd (a UK souvenir maker), owner of the first image successfully sued New English Teas (owner of the second image) for copyright infringement.

According to the judgement, it would seem that there has been some degree of bad blood between the two parties as there is reference to a previous image by the Tea company which was deemed to be in breach of copyright and a suggestion that the second image (which is in fact a composite of multiple images) was specifically created to address the previous concerns.

His Honour Judge Birss QC said (in paragraph 55), "I find that the common elements between the defendants' work and the claimant's work are causally related. In other words, they have been copied. There are two points. First the evidential onus to address a point like that is on the defendants here given the obvious similarities between the claimant's and defendants' work and the undoubted access of the defendants to the claimant's work."

Further, His Honour states (in paragraph 63), "I have not found this to be an easy question but I have decided that the defendants' work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant's work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of clichéd London icon."


 

It is difficult to unravel the 'bad blood' from the generic copyright dispute, but either way, the second image was deemed to be in breach of the copyright held in the first image.  This was despite a significant amount of 'prior art' from other photographers being presented in court.

His Honour again, "The defendants went to considerable lengths to point up the differences between the images. They analysed the overall composition which is said to be very different both vertically and horizontally. The balance of foreground, middle ground and far ground features were analysed and said to be different in key respects. The fact the river is absent from the defendants' work was pointed out. These differences all exist but it seems to me that on the question of copying they do not help. In this case it is not a coincidence that both images show Big Ben and the Houses of Parliament in black and white with a bright red bus driving from right to left and a blank white sky. The reason the defendants' image is like that is obviously because Mr Houghton saw the claimant's work. The differences do not negative copying, on the facts of this case they have a bearing on whether a substantial part is taken."

It seems surprising, but the sole testimony in the case came from Mr Fielder, Managing Director of Temple Island, who took his company's original photograph (and manipulated it extensively in Photoshop) and from Mr Houghton, from New English Teas, who took four separate photos and had a design studio combine them in the manner he required (in addiction, the design company made use of a stock photo of the bus, as Mr Houghton's image was unsuitable).

There was no input from either an expert in the application of copyright rules nor from a photographer or Photoshop practitioner.

If this judgement is upheld at appeal, and the generic copyright issues are abstracted from the other issues at court, then photographers around the world may have a significant problem on their hands.  This judgement will make derivative works (generally referred to as 'appropriation'), and those "in the style of" almost impossible.  It will also mean that once a definitive image of a particular scene exists, no other commercially-available images will be permitted; it's not even sure how this would translate to tourist and amateur photographers.

 

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David Heath

David Heath has had a long and varied career in the IT industry having worked as a Pre-sales Network Engineer (remember Novell NetWare?), General Manager of IT&T for the TV Shopping Network, as a Technical manager in the Biometrics industry, and as a Technical Trainer and Instructional Designer in the industrial control sector. In all aspects, security has been a driving focus. Throughout his career, David has sought to inform and educate people and has done that through his writings and in more formal educational environments.

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