Insane English copyright ruling creates ownership in the idea of a photo's composition

In a bizarre ruling, an English court has ruled that in favor of a commercial poster company that argued that a photo that showed a similar (but different) scene taken by a different person in a different place nevertheless infringed the copyright of a poster. What the judge ruled was that photographing a scene that is "substantially similar" to a scene someone else has already photographed infringes the first shooter's copyright.

It's impossible to understand how this will play out in real life. If a Reuters and an AP photographer are standing next to each other shooting the Prime Minister as he walks out of a summit with the US President, their photos will be nearly identical. Will the slightly faster shutter on the AP shooter's camera give him the exclusive right to publish a photo of the scene from the press-scrum?

The judge here ruled that the idea of the image was the copyright, not the image itself. Ideas have always been exempt from copyright, because courts and lawmakers have recognized the danger of awarding ownership over ideas. Indeed, the "idea/expression split" is pretty much the first thing you learn in any copyright class.

Amateur Photographer quotes "photographic copyright expert Charles Swan" who warns, "The Temple Island case is likely to herald more claims of this kind."

Yeah, no shit. This creates a situation where anyone who owns a large library of photos -- a stock photography outfit -- can go through its catalog and start suing anyone with deep pockets: "We own the copyright to 'two guys drinking beer with the bottoms of the mugs aimed skyward!'" It's an apocalyptically bad ruling, and an utter disaster in the making.

Swan warned: 'The Temple Island case is likely to herald more claims of this kind. The judgement should be studied by anyone imitating an existing photograph or commissioning a photograph based on a similar photograph.

'“Inspiration' and “reference” are fine in themselves, but there is a line between copying ideas and copying the original expression of ideas which is often a difficult one to draw.'

Though, in the past, the cost of such court actions has made them 'uneconomic to pursue' this is all about to change, added Swan. 'The UK government has accepted a recommendation in the Hargreaves Report that the Patents County Court… should operate a small claims procedure for intellectual property claims under £5,000.'

Photographers face copyright threat after shock ruling (update3)

(Images: Left, "Red Bus Image," Temple Island; Right, packaging label, New English Teas. Taken from this PDF)

• [kmoser]

  Blog comment trolls scramble to write “first post!” Photograph copyright trolls scramble to snap “first shot!”

• [Dave Pattern]

  So, presumably Steven Spielberg can now sue Temple Island Collection Ltd for stealing his idea of having a red object on B&W background?

  http://newspaper.li/static/743a236bcf656262318cdef48e8f3587.jpg

• [hughillustration]

  I’ve got dibs on sunsets. Anyone else takes a sunset shot, I’ll sue!

  • [Lemoutan]

    I have prior art.

    • [peterblue11]

      ok anything at all ever painted with inks-totally my idea. im onto the picasso, chagal and rembrandt fonds already. suing the shit out of em.

  • [Keith K]

    ok, but I get band-in-front-of-a-brick-wall.
    also, railroad tracks.

• [Michael Ivey]

  Really, this adds nothing but problems to the whole copyright process, given how unlike the modern implementation of the patent system (which is first-to-file in many places), if memory serves copyright is still first-to-own, with filing being a means of strengthening it instead of claiming it.

  It’s as if they’re trying to criminalize the unauthorized production of content. I’m hyperbolizing, yes, but this kind of ruling is a pretty slippery slope.

  • [Brother Phil]

    I had a similar idea about Big Content getting Creative Commons outlawed, and authors jailed for publishing outside the cartel.
    That’s it! I’ll have to sue you now! :)

• [NickPheas]

  OK, I agree it’s a dreadful principle in law, but the examples above strike me as going beyond just photography. Anyone saying that you could copyright the idea of photographing a bus crossing Westminster bridge is bat shit crazy. But here we do seem to have identical post photography photoshopping.
  The photographs obviously should be open, I have slightly more sympathy with the idea that the derivative works could be entitled to some protection.

  • [Marktech]

    OK, I agree it’s a dreadful principle in law, but the examples above strike me as going beyond just photography. Anyone saying that you could copyright the idea of photographing a bus crossing Westminster bridge is bat shit crazy. But here we do seem to have identical post photography photoshopping.
    The photographs obviously should be open, I have slightly more sympathy with the idea that the derivative works could be entitled to some protection.

    My immediate problem is that it’s such a hackneyed idea, I can’t see how one entity can claim  prior art.  Back when I was studying photography in those pre-internet days, keeping the main subject in colour while monochroming the background was a standard technique; applying it to, you know, an iconic object like a saturated-red London bus would be the first thing anyone thought of.  A quick google-image search for London bus reveals half a dozen examples in the first page of results; I haven’t the time or the curiosity to try to work out if any of these pre-date the plaintiff’s brilliant and original idea.

    • [arkle]

      I think you’re probably right, and to my eye these are dissimilar enough that there shouldn’t have been infringement (different framing, angle, composition, level of contrast and detail). But per @hostile_17:disqus , these two are still pretty similar.

      By contrast, here’s a version of the same technique which no court would find infringing:

      http://keivannemati.deviantart.com/art/london-bus-177119697 

      By the way, not to turn into doctrine police, but ‘prior art’ is really a patent (and to some extent a trade secret) concept. It doesn’t really come up in copyright.  (I know you were using it loosely…)

      From Alfred Bell v. Catalda Fine Arts (making the distinction):

      “The alleged inventor [in patent law] is chargeable with full knowledge of all the prior art, although in fact he may be utterly ignorant of it. The ‘‘author’’ is entitled to a copyright if he independently contrived a work completely identical with what went before; similarly, although he obtains a valid copyright, he has no right to prevent another from publishing a work identical with his, if not copied from his.”

      • [Chrs]

        “Prior art is really a patent… concept”

        Apparently, not anymore. 

  • [Lemoutan]

    I must admit that my first instinct was that the judge had a point. It isn’t just the scene – there’s something a lot more specific going on in those two pictures. It looks like deliberate copying and that the first photographer might justifiably feel peeved at the second one (leaving aside the naffness and unoriginality of the idea for a sec’). The second photographer would have had to have gone into something like photoshop to achieve the effect and this would, perforce, have been a conscious decision.

    This is no longer the case. It is now effortless to produce pictures like this, sans external software. You can do it right there in the camera. It’s so easy that you could take a pic like this by just fooling around, or even by accident, with no intent whatever to copy something you’d seen.

    That is why the ruling is dumb, stupid, crass (insert your own adjective). Technology makes it easy to facilitate what others have done before you. That’s what it’s for.

    If you want to put a stop to this, then that’s fine – go ahead. But go after Canon – they are the ones manufacturing these entrapment machines.

    • [Nathan Hornby]

      Just a quick point: Intent doesn’t really factor into copyright; you could feasibly violate someones copyright terms without realising it.

      Obviously it factors into a ruling, but not the actual infringement. Else the marketplace would be flooded with the same logo from several unique creators.

      • [Ed Bynum]

        You could? I think, by definition, if you can *copy* something without knowing about the original, then you’re not COPYING. The protection is over-reaching if you’re COPYING something without seeing the original.

  • [ChurchHatesTucker]

    I am almost glad for this ruling. Photogs are the specialest of snowflakes and are constantly screaming about this kind of thing. 

    Fine. It’s the law now. Good luck with that.

• [hostile_17]

  I realise it’s dangerous ground – but they are so fundamentally the same thing, those pictures above. An old London bus. Kept in red. Against a picture where the rest has been turned black and white. Against a backdrop of the Westminster Clock Tower.

  So it’s not just similar in one sense, like it’s a photo of a building, it’s same in many ways including – importantly in this case I imagine – ways that are not the norm.

  Similar arguments on this level would be art that was meant to look like Banksy for example – or a company’s logo that looks very much like another company’s logo. (Orange get twitchy with anyone using orange – so not the best example.)

  Another example would be the Obama ‘hope’ poster. That was embroiled in its own copyright shennagins – but you would know if you saw another one of the posters of that style that it was based upon a original even if you could say fundamentally it’s just a photo. But it’s not – it has a spin on it.

  I think a normal photo is a photo, and much harder to copyright. There is no creative uniqueness, like in the B&W photos above. I don’t think anyone has ever said “My god, he photographed the Eiffel Tower. So did I!”. But if I did that B&W photo, I’d feel ripped off by the other one.

  • [penguinchris]

     If you did a photo like this (implying you’d be a photographer and thus familiar with modern photography) and saw someone else do the same thing, you wouldn’t feel ripped off because it’s photographic cliché to the extreme. You wouldn’t feel ripped off because you would have seen the same thing done (not necessarily the same bus and bridge, but those are very generic) hundreds of times previously.

    No photographer or creative director or whatever can claim today that they came up with this idea on their own, because it’s so pervasive (and since Schindler’s List, never used appropriately or effectively or aesthetically successfully IMO).

    All your examples are quite different, because they’re not clichés (though none of your examples are worthy of copyright litigation either, IMO).

  • [Nathan Hornby]

    “Orange get twitchy with anyone using orange – so not the best example”

    More so than that.  They have a trademark on the contextual use of the colour.  Same as BP and green (with the context of petrol stations).

• [Mac]

  The summary ‘
  What the judge ruled was that photographing a scene that is “substantially similar” to a scene someone else has already photographed infringes the first shooter’s copyright’  isn’t quite correct.

  The judge ruled that if you choose to copy a photograph then you can be violating copyright.  Even if you choose to copy the photograph by restaging the scene (so to speak) then it is still copying.

  If you take a photo that is the same for another reason then it isn’t copyright infringement .. because you didn’t copy.  Things can be identical without the act of copying .. it is the concious act of copying that makes it a copy.

  It is more subtle than a hysterical headline .. but it’s a shame that people don’t take the time to understand the issues beyond the headlines.

  Mac

  • [shadowfirebird]

    Mac, how will any court be able to rule on the contents of the photographers head when they took the picture?  Because that’s the only way to know whether someone was performing “the conscious act of copying”.  

    As opposed to, say, the unconscious act of copying.  Or to the act of creating original art that just happens to look a bit like another work of art.

    Just how many original, artistic combinations of photographable objects do you suppose there are?  I’m willing to bet that there are less than we might think.  Kitten in a basket?  One picture.  Sunset?  One picture.  Man holding up a sign saying “screw copyright?”  One picture.  (qv: Spider Robinson, ‘Melancholy Elephants’.)

    • [arkle]

      Courts determine copying by looking at the product of (A) circumstantial evidence of access and (B) degree of similarity. By product I mean that with very high similarity, you can make due with less evidence of access. Low similarity, and you need much better evidence of access.

      Per my post below, merger and scenes a faire are the main protections against the second concern you’re pointing to. Your intuitions are all good ones–these are difficult problems in copyright law–but if you dig in to the subject you’ll find that they have been considered extensively by courts, and not always unreasonably.

      IMO, if you want to find the thought police, they live over in trademark and patent. Has Boing Boing covered Prometheus Laboratories, Inc. v. Mayo Collaborative Services?

      • [shadowfirebird]

        IANAL, but wikipedia says that Scenes a faire only applies to the US.   UK copyright law is *much* less rational than US; until a UK lawyer says so, I think I’ll reserve the right to be concerned.

        In general, of course, you are correct — doomsaying is almost always oversimplifying.  But still.

        • [arkle]

          See disclosure below: IAAL (in part), but in the US, and would certainly defer to a U.K. lawyer. (Does Wikipedia really say it {or a similar doctrine} doesn’t apply in the UK, though? All I see is that it only mentions the US.)

          I’m concerned too! It’s a bad ruling. I just don’t think it’s a gigantic shift in copyright law (within the limits of my US-law bias.)

          Don’t knock doomsaying in general, though! :) It’s important when doom’s on the way…

    • [Simon Bradshaw]

      See my comment to C.Nate below – it’s still necessary to show that there was conscious, deliberate copying (the central test for copyright infringement in English law). 

    • [EvilSpirit]

      You talk of ruling on the contents of the photographer’s head as if it were some strange new problem. In reality, making determinations of intent is a common problem in the law generally, not just in copyright cases.

      Any infringement by creating a derivative work raises the same issues of showing the court that the second work was actually derived from the first. This is not a new problem.

    • [uptonogood]

      i think you’re ignoring the fact that the two companies were originally in discussion about compensation for the usage of a similar image. therein lies the rub. had that communication not taken place, the second company could have feigned ignorance.

• [Pip_R_Lagenta]

  I own the idea of a photo of Big Ben, and a bus, from across the bridge. http://www.flickr.com/photos/pip_r_lagenta/2790522033
  I expect all parties, including Boing Boing, to pay me.  I will be standing by my mail box tomorrow so that the mailman can hand me my checks.

• [arkle]

  I hate me some copyright trolls, but I think this is less upsetting (or novel) than it might seem at first. DISCLOSURE: I’ve only studied U.S. copyright law.

  (1) Copyright infringement (notably unlike patent infringement) requires evidence of copying (@Mac made this point while I was typing), so the Reuters vs. AP example is a major red herring; neither photographer could plausibly suggest that the other copied the photograph, since they were taken seconds apart. That’s the flip side of @twitter-15081539:disqus’s note about copyright v. patent. 

  (2) As I read it, the UK ruling is a lot like a photo version of Steinberg v. Columbia Pictures, which wasn’t an apocalypse. I don’t love the UK ruling (or Steinberg), but this is not that far out of the main line of U.S. cases in terms of defining those elements as expression vs. idea.

  (3) “Two guys drinking beer with the bottoms of the mugs aimed skyward” would definitely be an idea. Seriously similar pics or there’s no infringement. And both the merger doctrine and the scenes a faire doctrine would help even if the pictures did look substantially similar (basic idea: there are only so many ways to depict certain ideas.)

  Courts have spent a long time figuring out how to deal with these issues, and the system that’s evolved–although it’s abuseable, inconsistent, and flawed–isn’t braindead. If you want to get mad about IP law there are fifteen things I’d freak out about before I started worrying about this case.

• [shadowfirebird]

  @Pip: Yes, but I’ve patented the idea of making money from holding the copyright on an idea.  Pay up.

  • [L_Mariachi]

    I’ve patented the idea of blog comments claiming to have patented the idea of absurdly broad patents, copyrights, and/or trademarks in general or specific. Let this comment serve as a Cease & Desist to everyone who keeps repeating variations of this joke that was already tired out on Slashdot ten years ago.

    • [shadowfirebird]

      I wasn’t copying, honest!  I thought I was creating original art!

    • [awjt]

      Too late.  I already patented ALL ideas, and backdated THAT idea to pre-prehistory.  The carved venus figurines they find buried in caves from 150,000 years ago?  My idea.  Gnawing on a European Rhino’s femur for added calcium?  Mine too.  Thinking it might be a good idea to explore new lands by dugout or walking across the yet-to-be-named Bering strait?  OK, not originally mine, but my grampa had the ideas and left them to me in his will.  Now they’re mine.

• [GyroMagician]

  And another little window of creativity is sold-off to the lawyers.

• [C.Nate]

  So if I took a photo and had no idea it’s composition is similar to an existing commercial photograph, I could get sued?  How could they prove I knew of the copy written photograph before I made my own?  Do professional photographers now have to study every commercial photograph EVER taken before we plan a shot?  It is ridiculous. 

  • [Simon Bradshaw]

    No. That’s not what is being said here.

    To be sued, the person suing you has to show you knew about their picture and deliberately set out to copy it. In this particular case they did that because the defendant had asked to licence the claimant’s image and the deal had fallen through, so when the defendant made its own version it was pretty easy for the claimant to say “they knew about ours and copied it!”

    • [Cefeida]

      Thanks for explaining…this might actually be a good thing. I have had this happen to me and to several artist friends- a company liking our work but preferring to use their own resources to create a similar imagery instead of hiring us or licensing the original. It’s a dick move. 

• [ian jones]

  How is this going to impact on astrophotography? Am I going to get bankrupt if I sell a photo of M42? Andromeda? The fricking moon? Jeezy creezy, I’m selling all my gear to pay for all my impending legal fees.

• [Joseph Francis]

  I know a guy who ran a tineye.com search of his photo of the full moon and went ballistic when it returned many hundreds of ‘infringing’ matches.

• [CHINA]

  DIBS ON CHINA!!!

• [Kommkast]

  Dangit.. I hate being a photographer anymore… so much hate comes our way.

• [supertsaar]

  I think they should just sue anybody that does selective desaturation.
  Man that stuff hurts my brain.

• [penguinchris]

  If I’m parsing this correctly, the photo on the right is the “infringing” photo. But can I just say, the photo on the right is 100x a better photo. The one on the left is a dull snapshot with an attempted jazzing-up by the selective desaturation (which is awful in general… but reasonably successful in the photo on the right, actually).

• [Simon Bradshaw]

  Cory,

  Although this is a case that’s causing a lot of concern, the implications aren’t quite as apocalyptic as you suggest – although they’re bad enough.

  Even if this case stands as law (and see below for that) it doesn’t meant that Alice can sue Bob for unknowingly taking a photograph that resembles hers. The central test for copyright infringement (in English law, at least) is that there has to be intentional copying. Alice has to show that Bob knew of her photograph and set out to recreate it.

  Now in this case, we know that that’s what happened. The full details are given in the judgment:

  http://www.bailii.org/ew/cases/EWPCC/2011/21.html

  but to summarise, the defendants agreed to licence the claimant’s bus image, but this agreement fell apart and the defendants said that they would ‘source the image elsewhere’. Subsequently they arranged for the new picture to be taken and edited to resemble the original. It really wasn’t in dispute that there had been deliberate copying; the question was whether this was infringing copying.

  The reasons why the judge’s decision that this was infringement are controversial are laid out very well by IP specialist Jane Lambert in her blog post here:

  http://nipclaw.blogspot.com/2012/01/copyright-in-photographs-temple-island.html

  As she explains, HHJ Birss’ decision seems to go against a well-established earlier case, Creation Records, that also centred on the re-staging of a photograph. There it was held that this wasn’t infringement. Rather surprisingly – because Creation Records  is a well-known case in English copyright law – neither side cited it and the judge didn’t mentioned it. (That really surprises me, because Colin Birss is generally regarded as very smart on IP law; incidentally, he’s the judge who ripped Andrew Crossley to bits in the ACS:Law fiasco.)

  Speaking as an English lawyer with an interest in copyright I’m interested to see where this goes; I’ve already heard rumours that the case is likely to be appealed. Speaking as a keen photographer, I am concerned because although I don’t set out to deliberately copy pictures, it’s very hard not to be influenced by existing work; indeed, I wouldn’t want not to be influenced by existing work because there’s no way I am such an original and exceptional photographer that I could produce even half-way adequate pictures that were wholly original. 

  If I had to stretch the point, I could see that a combination of recreating the staging of a photograph and then processing the result so that it resembles the processed original is very, very heavy imitation. But I’m still a long way from being satisfied that it meets with decades of English legal precedent on what counts as infringing copying. I very much doubt we’ve heard the last of Temple Island v New English Teas. 

  • [arkle]

    Just the UK lawyer we were looking for!

  • [stephenl123]

    If the central test of copyright violation under UK law is intent, then the UK is in violation of a dozen international treaties with over 150 nations.

• [CretoidCom]

  Hmmm, this is going to be fun (not). How many people take pictures of the landmarks around London and get them printed up? The London Eye, Big Ben, Houses of Parliament etc. Whilst the style of those two photos is very similar, it’s not exactly novel to pick out the massive red bus as the main focal point and desaturate everything else. I’ve done that kind of thing in a few of my own photos.

  What about weddings where you’ve got a family member taking photos along with the professional? Who owns the copyright of the idea there?

  Sorry, I can’t see this getting any traction in the long term for most people.

• [Jayarava]

  I agree with hostile_17 – the images are very similar in composition and processing. But does this make is a copyright violation? 

  I know that I started selectively desaturating images after seeing just such a picture of a London Bus (on London Bridge). I totally copied that. But I’m not a commercial photographer selling photos, I’m just someone who owns a cheap camera and Photoshop Elements™. 

  Perhaps it is a copyright violation because people might have mistaken it for the original? But then penguinchris points out that the copy is pretty crappy. So maybe the person should be fined for public bad taste? Or should “caveat emptor” apply?

  The more these stories appear, and the more such rulings are decried, the more I think I don’t understand the arguments on either side. And the less I care. 

  I wonder how many of the strident have a vested interest – we all know about Cory – but are the rest of us producing novels for free, or are we consumers wanting something for nothing? I suspect that it’s the latter. I’ve published three books myself, and I happily sell the little buggers, and claim my “moral rights” to be acknowledged as the author under UK  law. 

• [Mike Burton]

  Pinsent Masons comment on this is very clear, as it demonstrates that it is the creative process added to an original picture that will be protected 
  http://www.out-law.com/en/articles/2012/january-/digitally-altered-photographs-can-qualify-for-copyright-protection-uk-court-rules/

• [Ross Hall]

  Appears to be an entirely reasonable judgment. This doesn’t appear to be a question of photography, but rather one of design.

  One image was constructed from different elements to substantially reproduce an image that was being used commercially by another. If you read through the judgment you’ll see that the infringing image wasn’t a photograph, but rather a composite put together from several sources.

  It is also clear in the judgment  that the Judge believes there was some element of wilfully copying one from the other.

  Far from being a “bad day” for copyright, this is an excellent judgment that should protect good quality artistic works from being ripped off.

  • [Quercus]

    Yep: Cory, try reading the actual decision once in a while, rather than relying on a second-hand account from someone else who doesn’t know what they’re talking about. It’s not an insane decision: it’s closely argued and well-considered. It might be controversial, it might even be wrong, but it’s not unreasonable on the reported facts. All of the facts, that is, not “OMG he’s copyrighted an idea!!11″

    One minor point from the decision: the defendants were knowingly trying to rip off an image they had decided they didn’t want to pay for, and were held liable.  This is copyright working as it should, no? Protecting the original creator’s rights? After due process before a court?

    • [Cefeida]

      I’d say that’s a major point. 

      • [stephenl123]

        Cory is right and the folks defending the judgement are wrong.  By international treaties (many of them) that Britain has signed, Copyright protects specific tangible expressions, not ideas.  And intent is completely irrelevant in copyright law, except in the determination of penalties.  This may be “a rip off”.  It may be a violation of trade dress law or trademark law.  It could even violate a design patent.  But this is clearly not a violation of copyright.  Copyright simply does not protect ideas.

        • [Quercus]

          And the decision* doesn’t* protect the general idea. In paragraph 68, the judge actually says this (apologies for the extended quote):

          “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.”

          In other words, the defendants could have independently produced their own image including a bus driving over Westminster Bridge and would have been ok. But they didn’t.  Cory is still wrong.

• [Paul Parkinson]

  I am appalled by this ruling – the judge must be blind AND bat shit crazy. They aren’t the same picture!!!

  Interestingly, if you visit the Temple Island website they have a range of products using images of UK bank notes – which are, if the £20 in front of me is real, “Copyright The Governor And Company of the Bank of England”. Conflict much?

• [Scurra]

  Hmmm.  It’s not at all clear what’s going on here.  There’s certainly some deliberate intent going on here, given that the original image seems to have been used quite widely and licensed by other people, and that the “copy” wasn’t made by someone who had a cool idea but hadn’t seen the “original”.  Whereas although there is clearly prior art, the guy who made the first image claimed not to have seen them (I don’t doubt this claim.)  
  Having said that, the judgement makes the absurd observation that the elements of the picture are “not just another photograph of clichéd London icons.”  Given that the only way to photograph the front of a Routemaster bus on Westminster Bridge in front of the Palace of Westminster is to stand where everyone stands to take the same picture, it can’t really be anything other than “another photograph of clichéd London icons.”  But this is used as significant supporting evidence for the ruling.  This is the bit that seems a little worrying to me.Mind you, there’s also the surreal claim in the judgement that the originator spent 80 hours on the first picture.  What on earth was he doing?! 

  • [Cefeida]

    80 hours sounds entirely possible to me, if you include planning, commute, set-up, a number of failed attempts (wrong light, wrong bus, too many/too few people in the shot), then editing… 

• [That_Anonymous_Coward]

  Won’t someone think of the Judge.
  CALL 999 you GITS! 
  The Judge has obviously had a stroke, and is impaired.
  Transport the Judge to the nearest NIH center!

• [silus]

  There’s an iPhone app that creates this exact effect, for heavens sake.  That alone should be proof of how unoriginal and overused it is.

• [hugh crawford]

  I don’t know squat about English copyright law, but in the US this would be  a trademark or more likely a trade dress case, and a pretty clear cut one as well.

  http://nipclaw.blogspot.com/2012/01/copyright-in-photographs-temple-island.html
  “The judge continued at [7] that the claimant’s image became famous in its industry and was used not just for its mugs, key fobs and stationery which were distributed by the National Gallery among others but was also licensed to Historic Royal Palaces. However, the release of an album of a well known group of musicians was not without commercial significance. ”

  cups and the tea to put in them both have confusingly similar artwork ? sounds like trade dress confusion to me.

  http://en.wikipedia.org/wiki/Trade_dressStatutory sourceUnder section 43(a) of the Lanham Act a product’s trade dress can be protected without formal registration with the PTO.[8] In relevant part, section 43(a) states the following:”Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which(A) is likely to cause confusion, or to cause mistake, or to deceive [...] as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such an act.”[9]This statute allows the owner of a particular trade dress (“container for goods”) to sue an infringer (a person or entity who illegally copies that trade dress) for violating section 43(a) without registering that trade dress with any formal agency or system (unlike the registration and application requirements for enforcing other forms of intellectual property, such as patents). It is commonly seen as providing “federal common law” protection for trade dress (and trademarks).[10]And then there is this tree in California that is trademarked: http://www.nytimes.com/1990/08/02/us/monterey-journal-trees-and-trademarks-the-disputes-run-deep.html

  (Edited by a moderator)

  • [hugh crawford]

    comment can’t be empty?

    oh well the formatting above is fucked , the comment system won’t let me fix it , or delete this comment – so I present to you the most useless* comment ever

    *wait , it’s useful in pointing out how useless it is so now it’s not ** useless.

    **oh wait, now it’s useless***

    *** never mind.

    • [Felton / Moderator]

      Your last link should work now.  You’re not able to edit your comments?

• [ultimate_sub_cool]

  lookout comic cons around the globe George Lukas is soooo gonna sue any photographers who take pics of people dressed as anything from starwars lmao

• [Andrew Kay]

  As questionable as the ruling is, this isn’t about ideas vs expression. Compare with songs, where the recording is copyrighted but so is the underlying composition, which is not “the idea of a song”. Here the image itself is copyrighted, but so is the underlying composition of the image, a red London bus driving away from the House of Parliament over a bridge, with the rest of the image greyscaled.

  Not that I agree wholeheartedly with the ruling, but is the underlying composition of a song “an idea” rather than “an expression”, too?

• [Roy Gray]

  UK libel law brings work to the UK legal system and the judges/lawyers/barristers/solicitors all get rich. This has a similar aim now other countries are taking action on UK libel rulings.

• [Florian Bösch]

  Another case of of why copyright belongs abolished, in fact, why it will self auto-destruct. Nobody can live in a world where such insane rulings are made (except the lawyers of course).

• [slowtiger]

  I’m an animator and graphics designer. If two ad campaigns would contain these two images, all colleagues in my field would scream “rip off!”, because it’s clearly the same underlying concept.

  But an important point would be wether the usage of the two images would be the same, or close. If one was a poster campaign for travels to London, and the other a package design for teabags, nobody would care, in fact it happens quite often that the same stock photo or one from the same series will be used in different contexts.

• [Trevor Grant]

  You can’t copyright someone else’s idea ???
  Old hat!
  See Summer-Holiday and many earlier red-bus on monochrome images…

• [Sebastián Ventura]

  Not that I like the ruling, but you have to take into account that what was ruled copying was the fact that the defendant had used the copyrighted photo without permission and lost in court, and had therefore created a new image with the same composition (no the same as the idea) just to avoid paying licensing fees.

  Also, this is similar to what happened to Disney a few days ago, as reported here http://boingboing.net/2012/01/25/disney-store-offers-mickey-t-s.html . I may not agree that similar images are a breach of copyright, but the law right now states that copying the composition and the different aspects of a picture or a photo is a breach of copyright.

• [starfish and coffee]

  There is another UK law that says you do not have IP rights on depictions of anything existing in the ‘public realm’ (i.e. outdoors), so people can use images of outdoors sculptures and famous buildings as much as they like.

  However, with this ruling Norman Foster could photograph his Swiss Re building in every manner conceivable and publish the images in a coffee table book or something. Then he could sue or demand license fees from anyone else who came along doing the same thing. Potentially a nice little side income for architects and sculptors, but rubbish for everyone else.

• [Mike Lynd]

  Over-reaction – there is only a problem if the later photo is a *copy* of the earlier. In other words an act of copying has to have occurred. Two independently taken photos could look identical but no question of copyright infringement would arise – no copying

• [garyg2]

  So… how does this effect companies like Urban Outfitters, long accused of ripping off smaller firms/artists? (in the US so “not at all” I guess… :))

  And most of the firms accused here: http://www.joelapompe.net/

  Not without precedent (in a non-legal way), ‘member the Tom Waits case(s) back in the 90s?

• [chortick]

  This will create a new opportunity for those with resources to bring lawsuits against those without resources.  This will probably create the same kind of jurisdiction shopping that currently motivates people to sue for libel in the UK.

  One suspects a deliberate campaign by the UK judiciary to support their legal ‘industry’ by creating a climate where it’s easy to sue.

• [ffabian]

  The problem is not the ruling – the problem is common law. In the common law legal system this  ruling will get used as a precedent while in a civil law system this ruling could be treated as some sort of isolated incident (= mad ramblings from an overchallenged judge) and ignored.

• [EeyoreX]

  The real issue here isn’t really to measure  exactly how close these two images are to one another in idea or execution. 
  This is actually about the very concept of originality and wich rights and privileges should  reasonably be granted to whoever is “first”.If someone deliberately “steals” an idea or a concept, that is really a moral issue at heart. It has only been a legal issue for the past hundred years or so. It’s not an absolute.

  We can continue trying to “fix” the current system of copyright and trademark laws by going deeper and deeper into minutiae about the infringing party’s supposed intents – like an surprising amount of posters here seem content to do – or we can acknowledge that the legal system needs another major overhaul to bring it up to date with the remix- and copy culture we actually live in today.

• [C.J. Hayes]

  By this rule, The Simpsons creators should totally sue the Family Guy creators.  Animated comedy?  CMON.

  • [Comedian]

    Simpsons did it.

• [Devon King]

  Some old guy who took a snapshot of a cute kitten is going to get rich.

• [Peyote Short]

  I think the first mistake the judge made was confusing photography with art.

  • [Comedian]

    +1 for the almost perfect troll, but you need a second to go with your first to hide the hook.

  • [CountZero]

    I think your mistake, peyote, other than chewing too many buttons, is knowing nothing about art.

• [George Faerber]

  My understanding is that the judge determined that the entire piece … the photography, the post processing and the work towards creating the end result was in this case transformative.  It’s not that they both took a picture of an iconic bus + skyline, is that these two shots are clearly communicating the same message.

  The interwebs would be agog over a company that tried to hire the initial photographer / artist for a project, fell into discord over licensing terms, and then went out and copied their creative spark.  

  The judge in fact used the term photographic work instead of photograph in his ruling.  To copy from a Slashdot article up today: 

  He defined Fielder’s image a “photographic work,” as distinct from a simply a photograph, in that “its appearance is the product of deliberate choices and also deliberate manipulations by the author,” and concluded that those aspects had been copied.’”

  As a photographer, I have no problem with this ruling.  I have a problem with the misapplication of this ruling from a photographic work to stock photography, or other bs like that, but this seems like a remarkably intelligent and measured response to me.  

• [Matthew Elmslie]

  My first thought was that you could argue that you could sue a photographer over taking a passport photo now. Head shot of a nonsmiling figure against a plain background? It’s been done before. There wouldn’t be any merit to the argument, and in a just world the argument would not carry the day, but you could sure try it, and if you had enough juice on your side you might win.

• [Alan Goulding]

  Hope this isn’t too off-topic but… everyone’s referring to Schindler’s List as a film example of selective b/w but my first recollection of seeing it in a movie was Rumblefish where just the fish were in colour.

  • [Stepan Arkadyevich Oblonsky]

    Agreed. It’s all over the place.

• [Alistair Sheehy Hutton]

  It would be helpful if people, for example Cory, actually read the ruling.  The judge explicitly mention in point 66 that he is not ruling on general photography.  In point 67 he highlights the fact that the defendants themselves show how differnt the same concept can look.

  Without reading the rulnig you’d miss that the defendants were explicitly trying to create a look-a-like fo the original image without infringing copyright and a prvious attempt at doing so had failed and been settled in favour oif the litigants.  you’d also miss that the second image is not “just” a photo but a composition of 4 sperate images to create the final scene, it is a collage.

• [Daniel Ewing]

  sure the ‘infringing’ image has  similar (apparently borrowed) elements, but isn’t  the re-imagining of the bus as Big Ben’s nuts enough to make it a new creative work? 

• [photodawg]

  The first mistake here is to assume that either “original photograph” is worth discussing in the first place. I have been a photographer for 42 years and have filled trash cans full of images superior to these “tourist snap shots”. Any photographer worthy of the name can claim the same. The majority of the problem with photography, over the past 40 years, is that everyone reads those ads that tells them  “buy this camera and you can shoot like a pro”. Now, we also have Photoshop to manipulate the images. So, now one can become a “photographer” without learning composition, exposure, lighting and the color of light.
  “Hell, I’ll just pop the image into Photoshop and turn chicken shit into chicken salad.” seems to be the cry of new “photographers”, these days.
  As for the images at the top, well, in my days studying color theory (early 80′s), in order to understand how color works, I thought it would be great to print a photograph in B/W, yet have one color element in the shot. This could have been done by utilizing the dye transfer process, which was costly and time consuming. Having neither the time or money, I abandoned the idea. Am I due money, because I thought up this idea 30 years ago (before Photoshop)? If so, Keep it because it is the idea of an amateur, and it shows. It’s an “oh wow” kind of thing, that becomes very boring very quickly. Photography should be about substance, not gimmicks. I fault the judge for not having the knowledge to understand that both images are garbage, and yet, the second image is a more refined, but derivative, shot than the first, color manipulation not withstanding.
  As for you young photographers out there, I suggest that you learn to produce worthy images, without processing. I know that you hot shots think you are above learning the basics. Hell, I say, put your big bad ass Canon 5D on the shelf and shoot 20 or 30 rolls of film. You might learn a thing or two if you have to think for yourself. Shoot on manual, it’s the only way to learn. If you keep your plane on auto pilot, are you really flying the plane.
  This is my first comment on this forum, I can see that it will not be my last.

  P.S.    Peyote Short, I suggest your comment would have made sense, had it read, “I think the first mistake the judge made was confusing (this) photography with art.” Otherwise, it makes you sound like some snippy teenaged girl.

  • [disqusplaya]

    How many kids are on your lawn, exactly?

  • [Antinous / Moderator]

    This is my first comment on this forum, I can see that it will not be my last.

    If you keep insulting other commenters, it will be.

    • [photodawg]

      If you are saying that my comment to Peyote Short was an insult, then how do you think I felt when he/she said that photography is not an art. I have spent the past 42 years pursuing the art of photography, having been exhibited and published on 4 continents. Yes, I am aware that the vast majority of photography is not art, especially in the hands of  the uneducated. This is serious business for me, and to have it trivialized by the ignorant is too much. So, if you want to keep me from making an honest appraisal of someone else’s comment, then you can keep it. Go ahead, give yourself a trophy for effort, you earned it.

      • [L_Mariachi]

        You may want to revisit those continents — you appear to have left your sense of humor on one of them.

        “Photography isn’t real art!” is a century-old diatribe, outdated as insisting on having one’s telegram delivered posthaste to Siam by autogiro. Recalibrate, man.

• [Ben Godby]

  Literally the dumbest thing I’ve ever heard.

• [DanMcD]

  “Substantially similar” is an incredibly slippery term, as evidenced by the chaotic implementaton of the (US) Federal Analogue Act (which deals with so-called designer drugs)

• [Nathan Hornby]

  I would concede that the ‘copy’ is a copy, but it definitely doesn’t fall into copyright territory.  This is 100% ‘inspiration’.

  However this isn’t a new precedent – I wish I could remember the details, but whilst studying copyright law as part of my animation degree I remember a very similar case, I think it involved Madonna, same kind of thing except I think the composition was a bit closer to the original.

• [stephenl123]

  In reply to Quercus
  But they defendants DID produce their own image.  And the judge acknowledges that they did.  What the judge apparantly doesn’t like is the intention with which they did it and the fact that they use image editing software.  But intention and image editing are not copyright violations.

• [vonbobo]

  If the company that created the copy had sent their picture to a third party printer for copies, would that printing company now be libel too?

• [Jonathan]

  One example that springs to mind is the huge collection of artists who’ve used ‘clever’ re-staging of the “Abbey Road” album cover for their own recordings. Just a handful of them: Kanye West, Sesame Street, Red Hot Chilli Peppers, Ren and Stimpey, etc. Just do a google image search and you’ll find MANY more. Would that be protected under fair use? Is it an “Homage” even if you’re going to be selling an album with that as the cover art?

• [Blaven]

  Sweet!  Ima gonna copyright taking a picture of yourself in the bathroom mirror with a cell phone.

• [Mim]

  So, I have this idea that I’m going to photograph visible things.

• [Thorzdad]

  So many people apparently incapable of reading the actual ruling.
  *sigh*

  Grar on, y’all.

  • [Mim]

    “Rwar rwar rwar rwar. No one understands you, She-Bear!”

• [Julien Couvreur]

  This is the inevitable and absurd consequence of the notion that one can own an idea. In fact, if ownership of ideas could exist, it would mean that I can own part of other people’s brains (and have partial ownership of their property: paper, tools, etc).
  Another example would be business ideas: opening frozen yogurt stores in busy neighborhood and malls. Why shouldn’t such idea deserve protection? After all, the first entrepreneur to figure out this location and product would be successful took significant risk to discover it. Why not make it illegal for competitors to come to that neighborhood, block, etc? Such are the logical implications of IP.

  Many Boing Boing contributors lament the absurdity of some applications of IP, yet undoubtedly support some forms of it (typically copyright). At some point, one needs to connect the dots and rationalize such a contradiction.

• [A P Photography]

  Had this guy been drinking? Does he realise that the first recorded photograph of EVERY iconic view of every iconic building or landmark will now have to be found and acknowledged, so that all images following and those who took them and earned money from them can be hunted down by these INSANE image libraries like Getty, and be sued?
  I can’t even begin to express my anger at the stupidity, and naivety of this ruling. The sh**storm this is going to bring down on all of us is incomprehendable.
  This sort of decision needs to be made by a coming together of ruling bodies such as accepted heads of photographic and graphic industries in order to sort this out once and for all.
  Petty meddlers of the law like this Judge who have no interest in the consequences of their rulings should be publicly villified by the high courts. They have no place setting in motion a sequence of events which could see money hungry image banks effectively harrassing and persecuting poor photographers scraping by on the already pathetic returns they get for their work.
  I don’t care about the standard of the work in question here, it really is NOT important. The essential thing here is that an idea can be owned by anyone as long as the execution is different. People will always buy what they like, so in the end it is they who are the measure of the success of one image over another, HOWEVER similar.
  Christ, I’m getting proper tired of this crap.

• [Sean McKibbon]

  This is how the entertainment industry will attack indy creators/reimaginers. They’ll start cataloguing what they already have and comparing. Then they’ll fire up computers and blast through god knows how many combinations of ideas and words and colours and musical notes and copyright all of that and then because their database will be sooooo vast they’ll start arguing that they probably already own everything and only licensed writers or photogs or artists can pick up a pen. I’m only half joking here.

• [Ken Bingham]

  Anyone who has a photo of  a person giving another bunny ears you will be hearing from my lawyer.

• [Greg Hooper]

  I see this as a positive - the more the courts are tied up in stupid claims the better, the more the existing system is shown to be ridiculous the better. 

• [tmdpny]

  So, someone taking a picture of the Empire State Building with lights on it, is infringing in the copyright of a postcard company who sells a similar image of the ESB with lights on it?

  A wedding photographer can be sued for photographing a bride and groom holding hands together because a photographer who has an image in Martha Stewart magazine owns the copyright to a similar image of an unrelated couple on their wedding day in a similar pose?