
Photographers face copyright threat after shock ruling - Fice
http://www.amateurphotographer.co.uk/news/photographers_face_copyright_threat_after_shock_ruling__news_311191.html
======
forrestthewoods
Did anyone here actually read the judgement?
(<http://www.bailii.org/ew/cases/EWPCC/2012/1.html>) It's actually quite
fascinating and I strongly urge everyone to read it before commenting. It
directly addresses several issues raised.

The claimant has a photograph widely used since 2006 and the defendant clearly
attempted to copy that photograph as closely as possible without infringing.
They second photo was not produced independent of the first. Copyright does
not protect an idea, but the expression of an idea. The original photo is an
original work and the second was clearly produced with the intent to evoke the
same expression.

Boundaries of intellectual property are incredibly difficult to define. I
strongly urge everyone to read the judgement before making a judgement of your
own. Predictions of doom and gloom are a great deal premature.

~~~
bane
"Copyright does not protect an idea, but the expression of an idea. The
original photo is an original work and the second was clearly produced with
the intent to evoke the same expression."

But isn't that essentially the problem? How many portraits are done in the
style of the Mona Lisa, or landscapes in the style of a well known
impressionist, or photographs of Yosemite in the style of Ansel Adams? Hell,
an arts education, purely by teaching form, style and composition based on
prior works is essentially a study in how to violate copyright if this ruling
stands.

To me the more important question with artwork has not been copying the style
of a work, that _is_ basically how most art in the world is created. It's
counterfit works that are the problem. The two images in this case cannot
possibly be considered in this manner.

This is an absurd ruling that essentially means that all works must be unique
in form, composition and style, and must not be inspired or based on any
prievious works of any sort. That's an absurdly high bar that essentially
stops the creation of most art.

~~~
pbhjpbhj
Still on this:

"Copyright does not protect an idea, but the expression of an idea."

Copyright actually protects from copying. Even if the expression is identical
if no copying took place then there is no infringement.

That said. Copyright also expires which is what you, bane, have failed to
mention. Also, copying the style - in this particular case - would have been
something along the lines of a yellow cab on the brooklyn bridge with the
background in monochrome. Even it seems if they'd had a red bus on Tower
Bridge or elsewhere. But here they've used the same style and very nearly the
same content. So I don't think you're being quite fair.

An analogue might be recreating Warhol's Campbell's Soup Cans with the cans
marginally rotated, basing the piece on the original work (trademark issues
aside). Now I'd like to say that I think that piece actually would be a valid
new work - and have quite a lot of substance - but nonetheless it would be
derivative of the original beyond mere inspiration IMO.

Before I get any further I'd better read the ruling ...

~~~
Natsu
> Copyright actually protects from copying. Even if the expression is
> identical if no copying took place then there is no infringement.

Maybe in the UK, given that the judge did say something close to that, but
here in the USA that's not really true, unless perhaps you could show that
there was so little creativity that it came about by accident. But you might
have a hard time getting them to believe you.

~~~
pbhjpbhj
I'm on thin ice but I think it's true in the USA too - only source I can find
(for USA) with a quick search is a Caltech IP law lecture PPT
([https://docs.google.com/viewer?a=v&q=cache:35Cr_88udtsJ:...](https://docs.google.com/viewer?a=v&q=cache:35Cr_88udtsJ:https://courses.hss.caltech.edu/Fall2006/Law33%3Faction%3DAttachFile%26do%3Dget%26target%3DLecture10Copyright.ppt+%22Independently+created+similar+works%22+us+caselaw&hl=en&gl=uk&pid=bl&srcid=ADGEESgmYzVgAy1ZBIozYCraE5tD83BQpMZ5GmniSGFhyTiJXyeiX7BLcDFFjlY-
LPodpM8i1cNWhsnNghqu4czgk7Sa94LtLVJmSjT7EPKk2JL-
FEWslboDokPcwmrLU3KyPYlo5UUM&sig=AHIEtbQqAe9Clp_qgbOrIk4v1IdEI1aChQ); this is
good for the general case,
<http://www.iusmentis.com/copyright/crashcourse/requirements/>).

The issue is the burden of proof. In the tort of copyright in the UK I gather
the burden is the balance of probabilities. Maybe in the USA courts the burden
lies on the defendant proving they weren't able to copy (rather than on the
plaintiff showing they [most likely] did).

It's not only a defence where a work is uncreative (that might stop it being
an "original work" in Berne Convention terms after all) - if it's impossible
for one to have copied the other then there is no infringement (eg the alleged
copied work was privately held in a different country to the defendant).

\---

Edit: <http://forum.citizendium.org/index.php?topic=1377.225;wap2> link
surprisingly has a couple of good quotations in the response from '"The
essence of copyright is originality [...]"'. In particular - and I'm quoting
quotes here - are these two points:

"Since his work need not be novel, all that is needed to obtain copyright is
originality - that the work have originated with him; the author cannot have
copied it from another." (17 U.S.C.A., Section 102(a) as referred to in
'Intellectual Property: Patents, Copyright, and Trademark' by Arthur R. Miller
and Michael H. Davis, page 289)

and

"A copyrightable work must be original and fixed. Originality does not require
that the work be exceptionally creative or unique, only that it possess a mere
modicum of creativity and is the product of independent creation." ('Oxford
Guide to American Law', page 661)

Lastly I'm going to grab my own quote from Feist V Rural Telecom (eg
[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us...](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=499&invol=340)
[why didn't I hit up FindLaw first, they're always good for this sort of
thing]) - a US Court of Appeal judgement:

"Originality does not signify novelty; a work may be original even though it
closely resembles other works so long as the similarity is fortuitous, not the
result of copying."

~~~
Natsu
I just think it would be hard to show that you came up with a work
independently and had never seen the other work if your work was identical to
someone else's, that's all. I'm not saying you couldn't, just that it would be
rather hard to get them to believe you.

Then again, the judge simply took the plaintiff at his word when he was shown
a bunch of other similar works and he claimed never to have seen them. So
maybe you could convince someone? The same option was, apparently, not
available for the defendant because their products were sold side-by-side and
the plaintiff used the image first.

------
amenonsen
I read the judgement (<http://www.bailii.org/ew/cases/EWPCC/2012/1.html>,
linked to from the page originally posted), and I think it is a clearly-
written, well-thought-out ruling in a subtle case.

The finding hinges on the fact that the infringing photograph was not an
independent work, but was created based on knowledge of the claimant's
original photograph, without drawing inspiration from (or knowing about) other
similar works, a series of which are analysed. In no way does it mean that any
photograph of a red bus in London would infringe on the claimant's copyright;
in fact, this is specifically denied, and various ways in which the defendant
could have created a non-infringing photograph are discussed.

I find it's often instructive to read actual judgements rather than what is
reported about them in the press.

------
masonhensley
Whoa, that's not cool. That goes against a number of things that I taught my
team when I was the photo editor for the school paper in undergrad. While we
had editorial restrictions regarding post-processing wise, I tried to impart
to my team that being there with a camera in your hands was 90% of the work.

I was taught that a fundamental aspect of photography is... if you were there
and shot it, it's yours & you should be able to create derivative works
accordingly.(Ya, this doesn't apply to taking a camcorder to a movie theater.)

Does this mean that in 20 years after every square inch of London is
photographed that no new commercial photographs because they might infringe?
While the case had to do with more with the post processing of the general
content, who knows how this will be interpreted in the future. I'm sorry for
photographers in the UK, this could really end up sucking in the future.

~~~
praxeologist
"I was taught that a fundamental aspect of photography is... if you were there
and shot it, it's yours & you should be able to create derivative works
accordingly.(Ya, this doesn't apply to taking a camcorder to a movie
theater.)"

Maybe the problem is anyone thinking they own any sort of rights at all in
images, patterns, etc.

~~~
Natsu
At least in the USA, there are scènes à faire, which are considered to be so
common they themselves are not protected:

<https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire>

And it wouldn't be hard to say that images of London buses, Parliament or Big
Ben were so iconic as to be stock. But of course, UK copyright law is involved
here, and they probably don't recognize any such exceptions.

EDIT: I saw the judgement someone linked to and looked at the photos. Suppose
that buses, Parliament & Big Ben are all considered stock. The view is
different in both photos, it's quite hard to tell that the bus is on a bridge
in the second photo, and the only creative element I can find that was copied
was to put a red bus on a black & white photo of the same general location. It
seems to me that item #71, along with mention that the second photo was
introduced late in the game, could have tipped that towards the plaintiff.

~~~
gcp
...and let's not forget the ruling is about a postprocessed image. You can't
take a picture and have it look like this case. You must specifically edit it
to match.

~~~
Natsu
Well, having one colored item and the rest grey is a fairly common way of
making one item stand out in a photo.[1] When you break it down, it's not that
creative a photo. They both take a black & white of an area with many iconic
buildings, then make a London bus pop out of the background by letting it keep
its color.

Item #71 tends to point to this particular case as being deliberate copying,
but it's not exactly impossible to get a case like that from independent works
when only so many elements were identified as being the same in both. It seems
like the crux of the matter is not whether it was edited or not, but whether
it was copied with the other photo as a reference or not.

[1] Google doesn't quite understand that as a query, but you can still find
many examples of this technique scattered among many irrelevant results:

[https://www.google.com/search?q=%22black+and+white%22+photos...](https://www.google.com/search?q=%22black+and+white%22+photos+with+one+colored+item&num=10&um=1&hl=en&client=firefox&rls={moz:distributionID}:{moz:locale}:{moz:official}&tbm=isch&tbs=simg:CAESEglgKdeRXO5kUiGnyoFNIzItDw&biw=1920&bih=895)

~~~
e_proxus
Even better yet:
[https://www.google.com/search?q=london+black+and+white+red+b...](https://www.google.com/search?q=london+black+and+white+red+bus&hl=en&prmd=imvns&source=lnms&tbm=isch&ei=UxkgT6aYDKnZ4QSSz6jADw&sa=X&oi=mode_link&ct=mode&cd=2&ved=0CCcQ_AUoAQ&biw=1391&bih=1084)

------
yason
This is good. When more people whose profession depends on the selective lack
of "copyright", things on that front might get sorted out sooner than if it
was only a group of angry "pirates" calling for something as kinky as internet
civil liberties.

------
davekinkead
I wonder if celebs could apply this ruling to pappazzi?

Simply employ 1 pap to photograph the celeb partaking in a typical celeb
action (coming out of a rehab centre, cavorting with intern) in typical pap
style. Then sue for copyright infringement anytime a similar pic is published
in the future.

That said, this ruling makes about as much sense as trade marking a colour
[http://newsfeed.time.com/2011/11/21/cadburys-chocolate-
trade...](http://newsfeed.time.com/2011/11/21/cadburys-chocolate-trademarks-
the-color-purple/) or illegal numbers
<http://en.wikipedia.org/wiki/Illegal_number>

~~~
alexchamberlain
I disagree about trademarking a colour; you've been able to do this in the UK
for a long time. However, you should bear in mind that the trademark only
holds in one industry, for which it is well known. For instance, Cadbury's
holds purple for confectionery - they use purple on all of their packaging.
Orange holds orange for the mobile phone industry, but easyJet holds it for
airlines.

------
ernestinis
Google image search gives: red bus big ben london... lots of similar images:

[http://www.001galerie.com/london-landscape-painting-
routemas...](http://www.001galerie.com/london-landscape-painting-routemaster-
knife-p-1228.html)

~~~
cico71
Following the judgement, this painting is also infringing on the idea,
composition and so on:
[http://i.dailymail.co.uk/i/pix/2011/03/03/article-0-0D74781D...](http://i.dailymail.co.uk/i/pix/2011/03/03/article-0-0D74781D000005DC-489_634x444.jpg)

Or maybe not, because there's also a car in this one, so maybe it doesn't hit
the similarness threshold...

------
wlesieutre
When I was in middle school, I had a short black and white photography class.
For one assignment, we developed black and white images and then colored parts
of them using kool-aid. I shot a stop sign and colored it red. The idea that
[http://davidsutherland.photoshelter.com/image/I0000jSgkaCbPa...](http://davidsutherland.photoshelter.com/image/I0000jSgkaCbPa7s)
would somehow infringe on my copyright because it's the same subject matter
and coloring is absurd. It's not my picture.

~~~
Luc
What if (as it appears to be in this case) the second photographer
intentionally used your photograph as a template for his own, copying it to
the extent that a casual observer would not notice that they are different,
putting in the effort to make it as much as possible like yours? There's many
more similarities in those pictures - e.g. it's the same location, the same
iconic background buildings, the same shade of red and the detail of the sky
has been removed in both.

I don't think the judge would have ruled this way if it had been a coincidence
that the photos are alike.

~~~
FlemishBeeCycle
And what if you both sit in a life drawing class drawing the same model? What
if for some odd reason you decide to sit behind one of the participants and
draw a portrait based off their drawing?

I certainly understand what you're getting at, but everything that we do today
is based off of some idea that came before us. Is a certain level of
indirection required for an expression to be considered appropriately unique?

From the article, "..there is a line between copying ideas and copying the
original expression of ideas...", I would consider that opinion to be both
myopic and absurd. We stand on the shoulders of giants - nothing created today
can ever be considered to be truly "original".

~~~
Luc
> From the article, "..there is a line between copying ideas and copying the
> original expression of ideas...", I would consider that opinion to be both
> myopic and absurd.

Society needs to draw that line somewhere, to balance the free dissemination
of culture and the possibility to make a living off creative works. As long as
you are living in a democracy that needs to balance different opinions and
make compromises, you'll never be able to get rid of this (unless you simply
ignore the law, of course).

------
grumblepeet
Greed, greed...everything is greed. Sad day for photography in the UK.

------
rickmode
A clear sign Intellectual Property has jumped the shark.

------
AdrianRossouw
it makes me sick that 'monochromatic city scene with one element of color' is
being called 'original' in any sense.

~~~
clarkevans
The judgment seems rather well considered. What it brings into my mind is that
there wasn't a clean-room effort:

"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."

------
richardburton
I hate how we have to refer to stupid judges with _honour_ :

'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.'

------
jrockway
I guess all street photography is illegal now, since the Street View car
already took a picture of your subject.

------
mbreese
What kind of precedent does this set in the UK and is there potential for
appeal? As you can tell, I'm not familiar at all with the British legal
system.

What is the UK law on trademarks? I could see this being a potential trademark
issue in the US, but not a copyright one.

~~~
ThaddeusQuay2
"I'm not familiar at all with the British legal system."

In London, you can get arrested, as a pedophile, simply for taking photos of
children, on the street, who aren't your own. That's pretty much all you need
to know about the British legal system. Oh yeah, and the best attorneys are
the ones with the most expensive wigs.

EDIT: Speaking of copyright: "On 13 January 2012, a [UK] judge ruled that
O'Dwyer [the kid behind TVShack.net] can be extradited to [the] US. The
Southern District Court in New York has charged O'Dwyer with conspiracy to
commit copyright infringement and criminal infringement of copyright. Each
charge carries a maximum sentence of five years."

zttp://en.wikipedia.org/wiki/Richard_O'Dwyer

NOTE: I forced the URL with a "z" because HN isn't allowing the apostrophe.

------
lucaspiller
I wonder if this can be used to sort out the Zynga vs. NimbleBit issue?

