Interesting Copyright case

[JohnStewart]

Can't recall seeing this one mentioned on here before (I just read about it on pistonheads), but apologies if it has:

http://www.bailii.org/ew/cases/EWPCC/2012/1.html

A clearly different composite image was found to breach the copyright of another photo, as it portrayed the same objects (red London bus, B&W houses of parliament) in a similar style to the original work. You can view both images at the bottom of the link.

It would appear there is some "history" between the two parties, but the ruling could have implications for some photographers.

 

[ChrisGilbert]

It's interesting that in points 4 and 5 the claiment admits using ideas taken from other sources yet is trying to claim against someone else allegedly using the same ideas that he now claims as his own.

Could put an end to tripod hole photography

 

[jon ryan]

This bit was deeply worrying:

31. Mr Edenborough referred to the United States case Gross v Seligman 212 F 930 (1914) to establish the proposition that copying a photograph does not require a facsimile reproduction, it is enough to recreate the scene or a substantial part of it.

as it seems to suggest that any scene can copyrighted, which would effectively put an end to landscape photography.

But the judge went on:

61. On the first point, Mr Fielder's 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.

saying that it may appear that the second image was an attempt to cash in on a best-seller. The point about post-production is highly relevant. Anyone can take a shot of a bus on a bridge, but it is a bit worrying that part of the argument is that this is a red bus against a (manipulated) mono background. Is it now the case that no-one can use a shot like this commercially?

I wonder if this will be appealed?

 

[HMansfield]

So colour-popping a previously popped subject constitutes copyright breach?

The fact that this case is even being considered is beyond me, especially considering Chris's point.

 

[jon ryan]

So colour-popping a previously popped subject constitutes copyright breach?

The fact that this case is even being considered is beyond me, especially considering Chris's point.

Not being considered; has been considered. And the claimant won.

 

[desantnik]

That is really quite alarming.

I was expecting the two images to be virtually exactly the same - ie completely the same angle or one being a crop from the other.

Other than the rough geographic location and using selective colour on a red bus (my, how stunningly original in its concept - apparently thats 80's hours work to make quite frankly an image that would receive a slagging on most photography hangouts) there's nothing in common as we photographers would say with the image.

The whole thing seems to hang on that the infringers used the exact image illegally previously, that the image itself had been licenced for use on a million pieces of tourist tat and that the new "infringement" was a replacement image after the take down was enforced.

Thats pretty dodgy ground and if you read the detail of the legal background, I can't see how they found in favour of the claimant - but then again if you've seen UK law in action, half the damned time I can't understand what swings it! Its certainly nearly always nothing like most of us would call clear cut blame.

 

[Phil V]

I think that given the background to the case, the judgement is based on the intent, like the fact that theres nothing special about a Campbells soup can but Im sure there are ways that we could use and try to sell an image of some that'd mean we'd be in breach of AndyWarhol's copyright.
Its not so much the creation of the image, rather the deliberate intent to make money from a 'copy' of a previously successful image purely to avoid paying for the original.

 

[StewartR]

Its not so much the creation of the image, rather the deliberate intent to make money from a 'copy' of a previously successful image purely to avoid paying for the original.

That's it exactly.

Nothing to upset the horses, really. It doesn't create any blanket precedents.

 

[HMansfield]

apparently thats 80's hours work

Pfffft. My sister has an Ixus 70 that will do it for you automatically, and it won't even take 80 seconds.

 

[desantnik]

Pfffft. My sister has an Ixus 70 that will do it for you automatically, and it won't even take 80 seconds.

 

[jpwild]

I think that given the background to the case, the judgement is based on the intent, like the fact that theres nothing special about a Campbells soup can but Im sure there are ways that we could use and try to sell an image of some that'd mean we'd be in breach of AndyWarhol's copyright.
Its not so much the creation of the image, rather the deliberate intent to make money from a 'copy' of a previously successful image purely to avoid paying for the original.

Still, rightly or wrongly can open up a Pandora's box of trouble.

What happens if Company A wants an image from Photographer A, but Photographer A is charging an amount in which Company A thinks is to much. Company A then hires Photographer B, a cheaper photographer, to take a similar image to Photographer A, and thus has an image of something considerable cheaper than Photographer A.

Hmmmm.

 

[desantnik]

I think probably Jon the case hinges on prior *illegal use* not proposed use... but I guess it could come down to that - I ask you to provide images of the Eiffel Tower for my new microwaveable frozen frog leg snack product and you offer me some, but I haggle over the price then ask and use someone else...

I liked that you shot the ET backlit by a low sunset and so ask tog #2 for the same... wooosh bang.

 

[jpwild]

I think probably Jon the case hinges on prior *illegal use* not proposed use... but I guess it could come down to that - I ask you to provide images of the Eiffel Tower for my new microwaveable frozen frog leg snack product and you offer me some, but I haggle over the price then ask and use someone else...

I liked that you shot the ET backlit by a low sunset and so ask tog #2 for the same... wooosh bang.

To be honest, this can happen with scripts and other media, so one may argue why doesn't it happen with photography? I am surprised it's taken this long for something like this to happen here.

Of course, I don't want it to happen as things would get very messy and photographs, I don't believe, should be copyrighted in this sort of way.

 

[desantnik]

Never really thought it could be like that for photography unless it was a blatant direct copy (same angle, field of view, processing etc etc) - I know enough of that happens if you look through flickr.

I suppose its all no more stupid than the technical patents bun fight going on at the moment in the technology world, which contains arguments as silly as the original topic of this thread - "but I have a patent for an information system where the user types input from a alphabetic keyboard" etc

 

[modchild]

Amazing how some guy can take an unoriginal photo and then stop others trying to do similar. It's not like it's seldom used spot to take photos from, or a seldom used technique. I've tried the technique myself and it's not reaaly that difficult.
All in all, it's one tog chucking his teddies out his pram cause another tog made up a similar or better job of it. Quite pathetic really. Not like the first image hasn't made him enough already he wants someone elses money too.
How many people on here have seen an image either on here or elsewhere on the net and thought "I'll have a go at that". Does this now mean no one else can publish a picture of a formula 1 car racing round a corner, or a plane coming into land etc etc. Where will it all end. Flaming ridiculous.

 

[HoppyUK]

<snip>Its not so much the creation of the image, rather the deliberate intent to make money from a 'copy' of a previously successful image purely to avoid paying for the original.

That's it exactly.

Nothing to upset the horses, really. It doesn't create any blanket precedents.

Agree. It's a complicated one-off, not a clear-cut copyright issue and at least as much the particular circumstances of use and the deliberate intent at passing-off and trading on the goodwill created by the previous work. The difference is the previous history of use, to the financial benefit of one set against the direct loss of the other. The principle aim of copyright is to protect financial interests, or at least that's how it is usually ruled.

I saw a similar thing recently with a pop video that used a set design that was essentially a rip off of a painting. That was declared a copyright infringement too.

I don't think it stops anyone from producing an image like that and using it in a different and independent context. I know it doesn't set a legal precident, but it does set a precident of sorts and I rather wish the objections, which I support, were not hung mainly on the copyright hook, that I don't.

 

[jon ryan]

It could be something along the lines of an image becoming so well known that is iconic. Everyone knows it, it makes good money for the snapper (huzzah!! ), and then some Uncle Bob with less imagination and fewer scruples decides to cash in.

Really, those two images are similar enough for one to suggest t'other. And there's nothing rare about that. We've probably all got examples of shots that we took because we liked and admired something similar and wanted to emulate the image.

There's a parallel in the `Keep Calm & Carry On' case, the difference being that here a number of firms were using it, apparently happy to co-exist, until one bloke decided to try to copyright the slogan. That certain manufactures had already been able to register the wording to be specifically used on certain products (scroll down the link), seems reasonable; if I'm selling tea illustrated with an image, I'd be annoyed if my rival did something so similar that the products could be confused by prospective buyers.

But, isn't this what supermarket `own brand` products tend to do? There seems to be a close resemblance in packaging on a lot of these - I've accidentally picked up the wrong product on numerous occasions, which I suspect was the intention.

As ever, the only people likely to come out of this well are the lawyers. Why didn't I listen to that careers adviser when I was at school???

:shrug:

 

[HoppyUK]

It could be something along the lines of an image becoming so well known that is iconic. Everyone knows it, it makes good money for the snapper (huzzah!! ), and then some Uncle Bob with less imagination and fewer scruples decides to cash in.

Really, those two images are similar enough for one to suggest t'other. And there's nothing rare about that. We've probably all got examples of shots that we took because we liked and admired something similar and wanted to emulate the image.

There's a parallel in the `Keep Calm & Carry On' case, the difference being that here a number of firms were using it, apparently happy to co-exist, until one bloke decided to try to copyright the slogan. That certain manufactures had already been able to register the wording to be specifically used on certain products (scroll down the link), seems reasonable; if I'm selling tea illustrated with an image, I'd be annoyed if my rival did something so similar that the products could be confused by prospective buyers.

But, isn't this what supermarket `own brand` products tend to do? There seems to be a close resemblance in packaging on a lot of these - I've accidentally picked up the wrong product on numerous occasions, which I suspect was the intention.

As ever, the only people likely to come out of this well are the lawyers. Why didn't I listen to that careers adviser when I was at school???

:shrug:

Yes, that's passing off in legal parlance - creating deliberate confusion with an intent to deceive, making money for you and by definition taking it away from the original manufacturer who has spent a long time building up reputation and brand value.

It's clearly unfair trading, but hard to pin down in copyright terms. All the various items and aspects are fine, and it's only when they're brought together in a particular way and in specific circumstances that the infringement occurs.

The world is full of these technical infringements, and sometimes it benefits both parties, and sometimes they just have to lump it. I seem to recall a fuss many years ago when supermarket own-brands first appeared in any number. I'm sure the original brand manufacturers would have liked to knock that straight on the head, but their position became impossible to defend when everyone started doing it to everything, and you don't want to upset supermarkets too much, so they now co-exist and of course we know that often the original brand manufacturers also produce goods for supermarkets, so, swings and roundabouts, it's okay.

 

[MARK AMIES]

The first image is, in my humble opinion, a better image, no offence to the photographer. The whole thing is ridiculous. It has the air of the person who is viewing it and getting upset that somehow this is 'unique'. Turn the whole shot to colour or to monochrome, and the argumet is out of teh window.

I have seen this type of image countless times in souvenir and tat shops in London, it is becoming incredibly cliched.

It is the modern equivalent of the flight of ducks. Sorry .

 

[Photodiva]

I've seen examples where a creative idea has been plagiarized and taken to court. The shot of a London bus on Westminster bridge and use of selective color is really hardly a novel creative idea. The whole thing seems a load of nonsense.

 

[jimbobtog]

I await with baited breath the counter claim by Mr S Spielberg for infringing his copyright and original idea. The claimant even admits that he nicked the idea from Schindlers List.

Worrying precedent to be honest.

 

[rhody]

I don't see this as affecting amateur togs unless they copy an already successful image and try to sell it commercially - which is what has happened here.

There is recent legal history between the two parties already over unpaid copyright fees.

The original image is already licensed and used on merchandise by several parties and the defendant was fully aware of this when he commissioned the "copycat" image.

It would appear the defendants tried to copy the success the original image by getting a similar image made and using it on their merchandise.

The judge has simply ruled the idea, composition and presentation are too similar to be ignored.

The defendant is simply trying to copy an already successful, identifiable "logo" or "brand" and position his product accordingly by association with the other image.

I used to work for a national company that had lawyers acting for them every month on just this issue where the national company logo of my employer was copied, modified slightly, just enough to be different and then used on documents, advertising campaigns and vehicles to give the impression to unsuspecting members of the public that they were in some way affiliated to the highly successful brand I worked for.

Our logo and font was and is very successful and immediately recognizable to anyone on the high street or in the UK.

My employer used to go to great lengths to prevent such unauthorized use of our original image and artwork and to prevent the public from being misled by copycats wishing to piggyback on someone else's successful strategy.

This decision will support businesses - it won't affect amateur togs unless they copy an already successful image and start to sell cheap, inferior copies of it.

I think it is actually a good decision, one that the judge didn't reach easily, which will protect photographers rights - not erode them.

 

[Spiritflier]

I could be in trouble for an image I've posted in the portrait section... I was unaware of this ruling until I read Amateur Photographer this morning!

I quite openly attempted to 'recreate' a shot by Rankin just to see how he'd done it. In fairness to me, I didn't do it for financial gain - just curiousity - but on the basis of that ruling, I could arguably be guilty of the same thing! :shrug:

 

[desantnik]

The important thing in such cases is that you didn't make financial gain nor *seek* to make financial gain - that in all probability makes you as a target for civil litigation such small fry that only a very vindictive person would attempt legal action against - however there are some of those out there...

 

[DemiLion]

I could be in trouble for an image I've posted in the portrait section... I was unaware of this ruling until I read Amateur Photographer this morning!

I quite openly attempted to 'recreate' a shot by Rankin just to see how he'd done it. In fairness to me, I didn't do it for financial gain - just curiousity - but on the basis of that ruling, I could arguably be guilty of the same thing! :shrug:

Unless you've used enough post processing to move your photograph into the realms of a photographic work, then no you aren't.

 

[Spiritflier]

Unless you've used enough post processing to move your photograph into the realms of a photographic work, then no you aren't.

If it's not a photograph already, then what is it?

 

[DemiLion]

If it's not a photograph already, then what is it?

Read the third post.

 

[StewartR]

I don't see this as affecting amateur togs unless they copy an already successful image and try to sell it commercially - which is what has happened here.
...
I think it is actually a good decision, one that the judge didn't reach easily, which will protect photographers rights - not erode them.

Well said.

There's a lot of people getting hot under the collar here, but they probably haven't bothered to read what the judge actually said. He made a very narrow ruling based on the highly specific circumstances of the case. It's nothing to be worried about.

 

[Simon photo]

Reminds me of the David la chapell vs rhianna battle.
Basically her video was an almost identical live version of some of the photos shot by David. I think what its basically about is ideas, and concepts, intellectual property so to say, being copied or emulated. David la chapell is supremely good at what he does and is an amazing creative mind. http://c580019.r19.cf2.rackcdn.com/wp-content/uploads/2011/02/rihanna-david-lachapelle.jpg
But a colour popped London bus? Come on! Your pulling my plums lol

 

[DemiLion]

Well said.

There's a lot of people getting hot under the collar here, but they probably haven't bothered to read what the judge actually said. He made a very narrow ruling based on the highly specific circumstances of the case. It's nothing to be worried about.

It's hardly surprising Stewart. AP are doing their level best to scaremonger again, with shoddy reporting and analysis. Their default position being; 'Ooh Look! A bandwagon. Quick! Jump!'

 

[rhody]

It's hardly surprising Stewart. AP are doing their level best to scaremonger again, with shoddy reporting and analysis. Their default position being; 'Ooh Look! A bandwagon. Quick! Jump!'

AP have gone downhill recently with this style of shoddy reporting and you are quite right - they can't see a bandwagon without jumping on it before thinking.

 

[rhody]

But a colour popped London bus? Come on! Your pulling my plums lol

There is far more to this than a "colour popped London bus".

Don't believe the hysteria and emotional drivel bouncing around the forums.

The judge made a difficult and reasoned decision about copyright which actually protects and strengthens photographers rights - not weakens them.

Unless of course someone intends to copy an already successful image, alter it slightly and imply by association that they belong to or are associated with an already successful, marketable image or brand.

The existing image is already licensed and used by companies for marketing purposes. What if the defendant decided to sell his copycat image in direct competition to the claimant?

Products bearing the original red bus logo are already being sold along side each other in the area.

What if I decided to market a dark brown fizzy drink using the same font, logo and colours as "Coca Cola" - yet I called mine "Coco Cola" or "Coca Molar" or "Rot your molars"?

I would expect the Coca Cola lawyers, quite rightly, to be at my door before I made my first million - wouldn't you?

 

[spaniel]

There was a rumour flying about that there were in fact 2 red buses in London, perhaps the judge should rule that each bus be a different colour to avoid confusion

This is a ridiculous case and should never have gone to court!

 

[DemiLion]

This is a ridiculous case and should never have gone to court!

Why?

The ruling seems well thought out and reasoned to me, with several references to precedent.

 

[Phil V]

There was a rumour flying about that there were in fact 2 red buses in London, perhaps the judge should rule that each bus be a different colour to avoid confusion

This is a ridiculous case and should never have gone to court!

I have to question whether you're familiar at all with the facts of this case. Either you didn't bother to read them or this is deliberately a hairy man living under a bridge.

I'll summarise:
Photographer has a highly unoriginal idea and colour pops an image of a London bus. Despite it being beneath most on this forum many customers buy tat adorned with this image.

One company uses the image to make money but can't see the point in licensing the image. Photographer sues the company.

The company then commission a similar image just to avoid paying for the original.

Photographer sues again and wins.

As others have said this is indeed a positive judgement for a photographer who's being ripped off by one producer of novelty tat.

This is a ruling that supports the spirit of the copyright laws. Defending an artists income from unscrupulous businesses.

 

[rhody]

This is a ridiculous case and should never have gone to court!

I'm sure you would feel differently if you were the claimant.

The full facts make interesting reading and you can see why the judge reached his decision based on all the facts from both parties.

Thank goodness our legal system is not based on ill informed, kangaroo court, knee jerk reactions on internet forums.

This strengthens photographers rights - not weakens them.

We should all be grateful for the ruling - it protects our work from unscrupulous actions.

Having said that, a report in today's news stated that as a nation, we tolerate dishonesty more.

What a sad reflection of society.

 

[rhody]

I have to question whether you're familiar at all with the facts of this case. Either you didn't bother to read them or this is deliberately a hairy man living under a bridge.

PMSL.

I can't believe the nonsensical hype and misleading information being chanted like a mantra by some in the photo forums.

 

[Phil V]

PMSL.

I can't believe the nonsensical hype and misleading information being chanted like a mantra by some in the photo forums.

It's the headless running about that makes me laugh. You'd think;
"Photographer wins copyright case against unscrupulous souvenir salesman"
would be met with a round of applause from photographers

 

[rhody]

This is a ruling that supports the spirit of the copyright laws. Defending an artists income from unscrupulous businesses.

I don't think the editorial team at AP understand this either or they are just whipping up a frenzy in the unthinking masses to boost sales.

Hmmmm - I'm thinking of starting up a weekly Photographic Magazine for Amateurs.

Perhaps I'll just copy their font, logo and layout and call it "Spamateur Photographer" - it does have a certain ring to it - especially if read out loud with a heavy French accent.

 

[rhody]

It's the headless running about that makes me laugh. You'd think;
"Photographer wins copyright case against unscrupulous souvenir salesman"
would be met with a round of applause from photographers

Spot on Phil.

How many on this forum alone actually realize that is what has happened?

The judge has strengthened our rights not weakened them.