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Photographers face copyright threat after shock ruling (amateurphotographer.co.uk)
92 points by Fice on Jan 25, 2012 | hide | past | web | favorite | 50 comments

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.

"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.

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 ...

> 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.

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:...; 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)


"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... [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."

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.

I think paragraph 37, where the judge quotes case law, is essential to understanding this case. The judge chooses to quote from a prior ruling and places emphasis this phrase: "defendants deny infringement but they do not advance a case of independent design"

The judge then goes on later to note the defendant "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"

In other words, this wasn't a clean room development, actual copying of design took place even though the no direct reproduction occurred. This seems to also mirror the AFC test for copyright infringement.


One you abstract out the stock materials, filter them for originality in design, and compare them, you conclude that the defendants work was indeed a copy of the essential creative elements and arrangement.

You have a point, however the problem is that something like a book or magazine could see a photograph (something professionally shot in a studio, staged, composed, cast with paid models, costumes and makeup, etc) that they like and want to use, decide they don't want to pay the photographer's price, and hire a cheap photographer to reproduce the original photograph's composition. (A friend of mine used to work at a small artist rep company in Chicago (http://www.friendandjohnson.com/), that handled photographers and illustrators. This sort of thing actually happened once in a while.)

I think if a photographer can prove something like this happened - if they have documentation of the magazine inquiring about a photograph, then publishing a knockoff without paying, then they have a case, because it's clear that the magazine wanted the original photographer's creative output, they just didn't want to pay for it.

As a trademark infringement, sure. An image commonly associated with a popular product inspired someone to create an at-a-glance similar image designed to invoke the same commercial impression but used on another product.

As a copyright infringement, no way. Two discernibly different photos of the same thing are just that - different.

Key comment that strikes me: "attempted to copy that photograph as closely as possible without infringing." Read those last two words again: "without infringing". The defendants were, by defined legislation, acting lawfully. Much as it may irritate some that law may be obeyed with certain consequences, such acts are STILL LEGAL. Any judicial system which responds to letter-of-the-law obedience thereto by redefining such actions as illegal just to convict a defendant cannot sustain, as those under the law don't know what the he11 they're under and at some point will revolt.

Well, we may discuss about the "closely as possible without infringing". To me composition seems a lot different (with the second one being much worse, but I must say I'm also not impressed by the original one).

Red bus in black&white with overcast sky?

Give me a break... what are the chances to shoot with an overcast sky in London?

Besides, isolating a (mostly) single color object in a B&W photo is so popular (and abused) that you can even have it in new point&shoot cameras.

Go, figure: http://www.dpreview.com/reviews/sonynex5n/page10.asp search for "Partial Color (R)" and click on the link.

Seems quite obvious that if you find yourself in that photo spot, and a red bus passes by, you immediately think to make it pop out with such a post processing trick.

I also don't buy the "clearly produced with the intent to evoke the same expression" argument. For example: how many pictures of the Matterhorn (with or without the lake in the composition) are taken and evoking the same expression?

This is simply a very bad judgement.

(Just to be clear: I see your point and my tone is not directed at you)

You can't claim it's a very bad judgement because you didn't read it. I know you didn't read it because you said "overcast sky". Had you read the judgement it repeatedly discusses the blank/white sky. It's an important element of the final judgement. The sky may very well have been vibrant blue in the original, unedited photograph. It is not an overcast sky and had you read the judgement you'd know this.

You're welcome to agree or disagree with the judgement, I really don't care. All I ask of people is that they actually read the damned thing before forming an opinion on it.

Ok, bad wording, what I meant is that this is a typical photo taken during an overcast day where you don't expose for the sky: low contrast (you can see it from the buildings and flat shadows in the original photo) and blown up sky.

So may guess is that the original one was taken on an overcast day but the sky was not blown up enough to make the buildings pop up more so it was removed in post processing. Nothing much creative or new here.

The photos are too small to make a good evaluation, but to me it seems that the second photo was not even taken on a overcast day (shadows on the building are more harsh).

These are just speculations and it may as well be that also the first photo was taken on a sunny day and the photgrapher simply lowered the contrast in post processing (the judgement describes only the manipilations "In summary").

Anyway, this doesn't change a single thing in my opinion. I would go as far as to say that white sky is not only a common technique, but it's also iconic in this case (i.e. it was notthat much of a creative idea to express something unique).

The judgement is full of notes taken about the several differences between the photos, among which composition itself is the most prominent, yet the sky becomes so important??

Really, I believe the whole thing is much simpler that all what is written in the judgement: a) the two parties involved already had problems in the past (see point 2) and b) the judge was biased by the fact that the second photo was done in a similar way on purpose (Point 10 "He clearly knew about the claimant's work when the second image was produced because the whole point of the exercise was to produce a non-infringing image given the complaint about the first image the defendants had used")

«Well, we may discuss about the "closely as possible without infringing".»

Did you read the judgement yet? There's no point discussing anything without knowing the facts of the case.

«Seems quite obvious that if find yourself in that photo spot, and a red bus passes by, you immediately think to make it pop out with such a post processing trick.»

If that's all it had been, the judgement makes it clear that the result would not have been infringing.

> If that's all it had been, the judgement makes it clear that the result would not have been infringing.

The judge appears to follow a rather interesting line of reasoning about this. The defendants identified a whole bunch of very similar works. The plaintiff said he'd never seen them and the judge took him at his word. You can see this starting near item #49.

So his work was considered original and theirs wasn't.

"Did you read the judgement yet? There's no point discussing anything without knowing the facts of the case."

I know it's nice and quick to dismiss arguments by presuming someone didn't read something, but yes, I read the article and I think the two photos are different enough. Mo matter what the judge wrote.

If anything, I'd say that the second photo (although aesthetically worse IMO) captures better the iconic landmarks by focusing just on the Parliament, the Big Ben and the Bus.

Yes, is missing, the bridge, but look at how busy is the first photo with the lampost and the bus covering the parliament and the people on the bridge. It also captures a wider area, loosing focus on the main icons.

The first is, overall, a better photo, but if I had to choose one to put on kitsch mugs, I find the second one more iconic (maybe cropping more on the right).

"If that's all it had been, the judgement makes it clear that the result would not have been infringing."

That was an extremization. Still, if I think I can do a better job at capturing a similar photo, I'm now barred from doing it and use the photo commercially unless I demonstrate that I did it either by canche, or that I didn't know about previous work (or more generally that my intent was not to take a photo not to pay the licence to someone else).

There are plenty of photo spots around the world were everyone go to make similar photos and plenty of well-known techniques that can be applied in post-processing. Yet, there are very few really original (creative) photos taken in such places.

The key question is "was it copied from the other work". Of course these issues you raise can be important in proving the copying.

This paragraph illustrates the controversy well—judge makes it clear that photos would ‘accidentally’ infringe if judged as suggested by claimant, and it was not the reason behind the judgement:

> 62. Each side put its case too high. The defendants are wrong to urge that only facsimile copying will do. I also disagree with the claimant's formulation. The angles are similar but not the same and in any case I am sure there are many things satisfying the claimant's definition which would not infringe.

But the next paragraph—what seems to reason judge's decision—looks a bit subjective:

> 63. … 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 icons.

That said, I think the decision is correct to make in the light of ‘Another matter’ (which was in fact ignored):

> What is behind this case is that the defendants' tea tins and boxes are sold side by side with souvenirs bearing the claimant's image.

IANAL though.

The problem is there seems to be an enormous deficiency in the whole legal conception.

The judgement goes on and on about originality and similarity and labour and skill. Certainly, that demanded a careful and fine examination. But really, this is all nigh on irrelevant. The only thing that really counts is the commercial impact. This is because the sole substantive purpose of copyright is to create market conditions to support production. Yet the commercial question seems, on a quick reading, entirely absent.

Of course, the lawyers can only work with the law as it is; the problem is deeper. The law seems like it is trying to do the wrong thing. Restricting copying when it has no effect on original production is utterly counterproductive. If someone copies, in a case like this, we can presume it was because the material copied was good. And if they use it to sell a product, we can presume -- since they are actually making sales -- they are providing some useful service. Again, that is good. And if the copying has no detrimental effect on the original's commercial use, then we cannot have even a contrived sense of harm being done. So then one ought to ask: what on earth is the law doing preventing good and stopping no harm?

I would have thought the commercial harm was obvious here. They wanted to use the image, but to get around having to pay the license fee, they essentially created a counterfeit version. I suppose you could make the standard piracy "They wouldn't have paid for it anyway" argument, but that really strains credulity here. They just wanted a discount by commissioning a ripoff.

Having read the ruling, and at least acknowledged the judge's reasoning...

Does it strike anyone else here as...I don't know, odd...that a court ruling of potentially huge influence came about due to a squabble over images on postcards and tea boxes?

Postcards and tea boxes.

What the hell kind of government and civilization have we settled on that allows such a petty dispute to potentially hose an entire industry?

Any code with such obscure coupling would be refactored without a second thought if possible.

This isn't a coupling between those two components; it's a common dependency with a bug that was exposed by one of the components. Once the bug in the dependency is fixed, anybody relying on the incorrect behavior is hosed.

FWIW I was going to comment about how typeface designers have been doing this since forever, but came across this (in summary: fonts are considered "utilitarian" and not protected by copyright):


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.

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.

"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.

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


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.

...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.

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:


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.

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... or illegal numbers http://en.wikipedia.org/wiki/Illegal_number

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.

If you would read the judgement, you would see that this is in no way similar.

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


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...

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

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... would somehow infringe on my copyright because it's the same subject matter and coloring is absurd. It's not my picture.

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.

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".

> 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).

I understand it's popular at Yosemite to try to replicate Ansel Adams' famous photos. Can his estate claim ownership of all of those photos? It seems like a dangerous precedent to me.

> kool-aid

Do you know of a link? Googling is not working for me, mainly because of all the images of coloured kool-aid drink and all the DIY sites on dying yarn with kool-aid(!).

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

A clear sign Intellectual Property has jumped the shark.

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

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."

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.'

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

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.

"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."


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

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

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