Taking Similar Photo Ruled Copyright Infringement

On January 12, UK company New English Teas found itself on the receiving end of a judgement passed by the Patents County Court. Its crime? Snapping an image of one of London's iconic red buses against the backdrop of the House of Parliament and altering it to look pretty much like the photo above. Despite the snap otherwise being a completely original work, the court ruled it as copyright infringement.

The infringing image? That's presented here, on the right (click for a larger version, or visit here for a side-by-side). As you can see, it is similar, but not identical. According to the claimant, a souvenir maker called Temple Island Collection, the photo "reproduces a substantial part of the [its] work". New English Teas responded by saying that the content of the photo isn't what's important — the argument should be whether the "skill and labour" was reproduced.

The judge, Collin Birss QC, admitted that the photos "look strikingly similar", if analysed in the most basic way, but that it was not a verbatim copy. However, he deemed that composition is a "source of originality" and can be subject to copyright, given all the factors that are a part of it (lighting, angle, etc.).

An interesting point made in the ruling is whether the photo is, well, a photo at all. Birss contends that, with the Photoshop manipulation used to remove people from the image, bleach out the sky, switch it to greyscale and amp up the saturation on the bus, it's more of a "collage". His argument is that a camera records light, and if that light is then changed (such as fiddling with the sky), it ceases to be a true representation of the light the camera captured.

While I agree setting a precedent for composition, content and a bit of tweaking via Photoshop is a bad move, the judge points out that the purpose of taking the photo in the first place was to avoid a clash with the law and not the pursuit of creative expression. From the ruling:

It is quite obvious that in no sense has any photocopying style reproduction taken place. The defendants' work was created from photographs Mr Houghton [of New English Teas] took himself. It is also quite obvious that the point of the exercise was to avoid infringing. Mr Houghton was clearly trying to avoid infringing ... 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.

New English Teas made it clear the "claimant cannot use copyright law in effect to give them a monopoly in a black and white image of the Houses of Parliament with a red bus in it", which is true. Still, it seems to me the judge felt the motive for taking the photo was as important as any artistic argument.

Birss, in his final decision, said that it was the combination of elements — the bus, Big Ben, the composition — that made the image "visually interesting" and this was reproduced significantly in the infringing image. In Birss' words it is "not just another photograph of clichéd London icons".

When it's all said and done, the court essentially ruled that one photo infringed on the copyright of another, despite both being original works — in the sense that one is not an exact copy of the other. I don't think it will open any floodgates, but a precedent now exists and there's no telling where that will take us.

We're a keen bunch of photographers here at Giz AU. How do you guys feel about this judgement?

[England and Wales Patents County Court via Amateur Photographer]

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