Pixiq

Amateur Photographer magazine reports that an English judge has decided in favor of a plaintiff because two photographs were “similar enough” to be a case of copyright infringement. Here’s the story and the photos, decide for yourself. If the judge’s decision goes unchallenged, it could have disastrous implications for photographers. 

Picasso once said that, “Bad artists copy, good artists steal.”

This case was heard in the Patents County Court of England and Wales and involved a souvenir company--Temple Island Collections-- who brought suit for copyright infringement against a tea company-- New English Teas. The issue was the use, on one of its tea packages of a photo of a red double-decker London bus crossing the London Bridge that was similar to one the souvenir company sold.

The tea company had gone to Justin Fielder, who shot the original photo and manipulated it in Photoshop and sold it image through his souvenir poster company. The tea company asked permission to use the image but Fielder apparently asked too much for the usage and so the tea company owner Nick Houghton, set out to shoot his own image for the packaging.

 The Finding

To the astonishment of many, the Honorable Judge Birss QC ruled in favor of the souvenir company. As copyright expert and lawyer, Charles Swan put it, 

“His honor, Judge Birss QC decided that a photograph of a red London bus against a black and white photograph of Big Ben and the Houses of Parliament, with a blank sky, was similar enough (my italics s.m.) to another photograph of the same subject matter to infringe copyright.” 

Although the judge noted that he was not ruling that the image was a direct copy, he did find that the “visual contrast” of the red bus on the B/W image and blank sky, was enough “proof” for him and he ruled that the original photographer’s “intellectual creation” was infringed upon. 

Let’s Do The Time Warp Again 

The judge’s ruling was based on the three elements—the red bus, black and white London Bridge and the washed out white sky. Had the Honorable Judge Birss, QC taken a moment to do a Google image search for “London Bridge, Red Bus, Black and White” in less than .22 seconds, the search engines would have turned up 2,500,000 images, of which dozens and dozens are exactly a red bus, B/W of London Bridge, and a washed out sky. If nothing else it would have demonstrated that Fielder’s idea was not even original, but was in fact, at best a cliché. 

You don’t have to be a lawyer to see the problem here. The judge is in effect, extending the definition of copyright beyond its usual meaning of something that is an expression of an idea—a photo or a book or a painting. He is saying that you can an idea itself can be copyrighted.

Lawyer Swan noted that, “The judgment should be studied by anyone imitating an existing photograph…..”

What? Every day billions of images are taken and loaded onto photo sharing and social network sites. It could be said that 99.9% of those images are made by people “imitating an existing photograph.” Whether it’s a shot of their kid playing Little League baseball or Grandma blowing out the candles on her birthday cake, these shots will look like nearly everyone else’s shots. How can I, or you or any photographer, know if there are any existing photos that we might be “imitating?” 

Of course, this case has the added factor of intent. One of the reasons the judge said he sided with the souvenir company was that the tea company had seen the Fielder image and after rejecting the asking pric, created a similar image. Their intent was clearly to get around the photographer’s “high” price but what is new about that?

The judge clearly has no idea about stock photography, which has tradtionally been an  way for photo byers to find inexpensive "similar" images at a lower cost and with less risk than hiring a photographer. 

Furthermore, looking at the two photos, they are, to my poor eyes at least, far more different then similar. Taken from different locations, one shows a stairway, the lower part of London Bridge and is a shot with a much wider angle lens. The buses themselves are different and in hte "original" photo there are people waiting for the bus. No one is waiting or seen in the "similar" shot. 

It Depends Upon What you Mean by Similar 

“I did not have sex with that woman,” said a beloved former American president. The validity of his statement depends upon what you mean by sex. So what did the judge mean by “similar enough.” And just how many similar elements are required to prove copyright infringement? We don't have a clue do we?

This case has naturally attracted a lot of interest in the world of copyright law. Since the case was heard in a lower court and decided by a “circuit” judge, it sets no legal precedent. Moreover, in all likelihood, it will be appealed, and hopefully overturned. Nonetheless, it is indicative of how perilous these times are for photographers. Just that a case like this could go to court and be ruled upon in this manner, means that we will surely see more f “similar enough” complaint cases.

And as often happens, just the threat of a lawsuit--even without court rulings-- can become a terrible restriction on freedom of expression.