UK ruling on Copyright infringement

Paulw

This is a very unusual and somewhat disturbing ruling in the UK -

http://www.amateurphotographer.co.uk/news/photographers_face_copyright_threat_after_shock_ruling__news_311191.html

http://www.dpreview.com/news/2012/01/25/Imitated_Image_Copyright_Case

What do people think?? :eek:

DaireQuinlan

I'm actually kinda with the judge in this individual case. The second picture is a clear attempt to duplicate the first picture while trying to maintain a sufficient difference that it can be regarded as a different work. In this case the judge decided that that difference wasn't enough.

It's not as bad as it sounds anyhow, every case will have to be taken on it's own merits, as british law (AFAIK) is not a precedent based system we've all become familiar with through watching too many american legal shows.

PCPhoto

All that this case needs to force it to crumble is someone to produce an image of a london bus on that bridge, in front of Big Ben and the houses of Parliament... which was taken prior to August 2005 - case closed !

I have no doubt I probably have such an image taken around 2003 - it was never released to the public but they copied my idea.....to the negative archives !!! ... now I wonder where my images of london are, how many years ago did I visit it.... think of the millions in damages I can claim...I feel violated that they used my concept for an image !!! (where's my solicitor !)


The scene is repeated multiple times on a daily basis before they captured it and after they captured it, it is photographed every day by tourists and I would guess local photographers would have a similar image - are they going to try go after them for "copyright breach" too ?

Ha ha .... suppose they will go after "Wildarrow" or shutterstock next
http://www.shutterstock.com/gallery-320788p1.html#id=25157860
Shutterstock have 412 similar images !! ouch !! http://www.shutterstock.com/similar-25157860/stock-photo-houses-of-parliament-with-big-ben-tower-and-red-bus-in-london.html

how many other stock sites have the same image ?

sineadw

On the contrary, I don't like this at all, especially in light of all the laws being passed at the moment on copyright infringement. British case law can be and is used in a European context (that's why the Rowling versus Big Pictures case was seen as so important). You *cannot* copyright an idea. The scenes, although similar are nowhere near identical. This is more similar to a trademark ruling as far as I can see (not that I know that much about it, but still...). The fact that the second image was taken to make profit from the first shouldn't enter into the equation, unless its a trademark or passing off argument. If you read the judgement he's claiming originality because he made the bus red and the rest of the scene black and white. Does this now mean no-one can publish an image of the same scene with a bit of crappy selective colouring done in photoshop in 10 minutes?

magicbastarder

why should photography be any different to books in this case?
e.g. to take rowling as an example, if i was to write a book about a young bespectacled wizard called barry hatter who goes to wizard college, i wouldn't last a second in court.

i think intent is key here. if it was a case of 'we can't afford or can't buy the image, we'll commission a copy', the defendant is on dodgy moral ground.

Paulw

magicbastarder wrote: »

i think intent is key here. if it was a case of 'we can't afford or can't buy the image, we'll commission a copy', the defendant is on dodgy moral ground.

Dodgy moral ground? But, that now has become dodgy legal ground.

Last summer, I replicated images taken 50 years previously, as closely as I could. - http://www.photography.paul-walsh.net/landscape/Cushman/index.html

If I didn't have permission from the copyright holder, then I would now, under that ruling, be in a situation where they could take a court case against me for breach of copyright, using that ruling as precedent. I know of 2 others who contacted me, who had previously replicated some of the images.

There are many many situations where people replicate images seen previously. Wasn't there a Rankin documentary where he replicated iconic photos from the past? Is he now in breach of copyright too???

This ruling is very concerning.

sineadw

Intent has nothing to do with copyright. That's passing off, which is more of a trademark issue. And you're perfectly within your rights to write a book about Hairy Motter if you want. In fact, rowling herself was sued by the family of a deceased author who claimed she plagiarised him. The case was thrown out of court.

What this ruling *could* say is that i now can't take an image of a naked woman sat backwards in a chair (a-la Keeler..) or some workmen on a beam of a skyscraper, or whatever else you want to use as influence. Or that tourists can't publish an image of a bus outside parliament and make it red. Or that people can't try to replicate Adams' landscapes. It's very dicey, and heading in a bad direction..

magicbastarder

to be honest, i was playing devil's advocate a bit there.
but the reason the plagiarism case against rowling failed was on a technical point - there was never any opinion or judgement issued about whether the case had merit, so there was definitely no precedence, legal or otherwise.

as a partial but related aside, what does the law say about using lookalikes to sell products? e.g. would george clooney have any comeback if a lookalike of him was used to sell products without it being obvious or being made clear it was not george clooney?

sineadw

Actually, the case in the US was ruled too weak to proceed, and the one in the UK looks likely to head the same way..

And they'd have to be clear that the celeb lookalike is a lookalike. Like those MoreThan Freeman ads Like here: http://oberipwatch.com/2011/08/31/celebrity-look-alikes-parody-or-misappropriation/ But that's more a false advertising or trademark issue, which is very different to copyright.

Bruncvik

So let me get this straight: In the UK, I may focus on a single point of interest, say the Tower Bridge. I may create a few dozen shots from different angles and various feature. Then I may expand the selection by applying various filters in Photoshop. Finally, I may have a few hundred photos that I publish and thus create copyright. From that moment on, I could pretty much own the copyright on the Tower Bridge imagery. Correct?

sineadw

Bruncvik wrote: »

So let me get this straight: In the UK, I may focus on a single point of interest, say the Tower Bridge. I may create a few dozen shots from different angles and various feature. Then I may expand the selection by applying various filters in Photoshop. Finally, I may have a few hundred photos that I publish and thus create copyright. From that moment on, I could pretty much own the copyright on the Tower Bridge imagery. Correct?

Only if you colourise them

I wonder if the judge in the case took any expert opinion on photoshop into consideration?

Paulw

sineadw wrote: »

Only if you colourise them

I wonder if the judge in the case took any expert opinion on photoshop into consideration?

I think he saw - red bus, B&W rest of image, and bland white sky. That seems to be the train of thought in his judgement.

ScumLord

It does look like the 2nd photo is an attempt to duplicate the original as the bus looks photoshoped in.

If these where two pieces of art not connected with the business of selling and branding there probably wouldn't be an issue, but companies will go to war with each other when it comes to branding and misrepresentation.
I think even if the images weren't so similar but used the red London bus on a B&W background the companies may have still butted heads if the original company thought the 2nd company was trying to take advantage of their popular branding (which they may have invested a lot of money into).

PopeBuckfastXVI

IMO there is definitely a case of some sort of trademark infringement to answer, but not one of copyright.

Bad law.

sineadw

I find it a little ironic that the issue concerns the houses of parliament and a London bus, both of which constitute intellectual property, albeit in the public domain. The original photographer had no issue (and rightly so) in re-presenting them..

I'm trying to find a decent legal comentary on it all. Anyone have a link?

MrPudding

DaireQuinlan wrote: »

It's not as bad as it sounds anyhow, every case will have to be taken on it's own merits, as british law (AFAIK) is not a precedent based system we've all become familiar with through watching too many american legal shows.

The UK does work on precedent, though it is possible to distinguish different cases on their facts.

I really don't like the sound of this. I am studying IP law at the moment, and this seems to go against pretty much all we have learned so far...:eek:

I suppose I better read the judgement...

MrP

magicbastarder

sineadw wrote: »

Actually, the case in the US was ruled too weak to proceed, and the one in the UK looks likely to head the same way..

the report i read on the case was that the claimant had to enter a million or so quid as surety, and failed to do so, and without that, the case could not proceed.

MrPudding

magicbastarder wrote: »

the report i read on the case was that the claimant had to enter a million or so quid as surety, and failed to do so, and without that, the case could not proceed.

Leaving that aside, they were probably unlikely to to succeed. As Sinead correctly points out, you can't protect an idea. I am sure you remember the Dan Brown Da Vinci Code case...

MrP

robertcochran

MrPudding wrote: »

The UK does work on precedent, though it is possible to distinguish different cases on their facts.

I really don't like the sound of this. I am studying IP law at the moment, and this seems to go against pretty much all we have learned so far...:eek:

MrP

The UK legal is very similar to ours here in Ireland, since they are both based on the historic common law system. So precedent is important. However this UK case was held in a County court, which as far as I know would be roughly equivalent to a Circuit Court here. Generally, both here and in the UK, only judgements in the High Court or above would be seen as carrying any weight as setting precedent.

So this case is very week on this basis alone, and because the judgement is plain wrong (As I explain below) it will be overturned by a higher court if appealed.

It is clear from the account of the case that the real issue is the commercial disagreements between the two parties, and the copyright issue was just a peg to try and hang a case on. They might have had a better case to use commercial law as the basis of their case.

Anyway coming back to the judgement, as Sinead and others have said, ideas do not have copyright attached to them. No argument, this is absolutely clear in all legal jurisdictions. In this case the idea or concept is that of showing a red bus against a mono view of Parliament. This is the idea and it cannot be copyrighted. Hence as I said the judge was plain wrong.

The judge discussed matters to do with composition etc, but these are in legal terms part of the expression of the idea, and nothing to do with the idea itself, and so are not relevant. Two photographers could stand side by side and take separate photos of exactly the same scene at the same time and they would still each separately hold the copyright to their own image.

This case reminds me of the 'look and feel' cases which were taken in the US in the early days of sorting out copyright in relation to software. There the argument was that because what you saw on your screen was very similar between two pieces of software, therefore one must be a copy of the other. This was sorted out over many cases, and that concept is no longer valid. You may in some cases had design rights to the 'look and feel', but not copyright. I think the same is true here in relation to these two images.

MrPudding

robertcochran wrote: »

The UK legal is very similar to ours here in Ireland, since they are both based on the historic common law system. So precedent is important. However this UK case was held in a County court, which as far as I know would be roughly equivalent to a Circuit Court here. Generally, both here and in the UK, only judgements in the High Court or above would be seen as carrying any weight as setting precedent.

This is very true, like cases decided in a foreign jurisdiction, lower court judgement are merely persuasive and not binding.

robertcochran wrote: »

So this case is very week on this basis alone, and because the judgement is plain wrong (As I explain below) it will be overturned by a higher court if appealed.

I hope it is appealed, but the defendant has now lost two cases, I hope be doesn't throw in the towell.

robertcochran wrote: »

It is clear from the account of the case that the real issue is the commercial disagreements between the two parties, and the copyright issue was just a peg to try and hang a case on. They might have had a better case to use commercial law as the basis of their case.

I am not sure what there might have been from the commercial side to hang a case off...

robertcochran wrote: »

Anyway coming back to the judgement, as Sinead and others have said, ideas do not have copyright attached to them. No argument, this is absolutely clear in all legal jurisdictions. In this case the idea or concept is that of showing a red bus against a mono view of Parliament. This is the idea and it cannot be copyrighted. Hence as I said the judge was plain wrong.

The judge discussed matters to do with composition etc, but these are in legal terms part of the expression of the idea, and nothing to do with the idea itself, and so are not relevant. Two photographers could stand side by side and take separate photos of exactly the same scene at the same time and they would still each separately hold the copyright to their own image.

This case reminds me of the 'look and feel' cases which were taken in the US in the early days of sorting out copyright in relation to software. There the argument was that because what you saw on your screen was very similar between two pieces of software, therefore one must be a copy of the other. This was sorted out over many cases, and that concept is no longer valid. You may in some cases had design rights to the 'look and feel', but not copyright. I think the same is true here in relation to these two images.

Whilst I pretty much agree with you, and I personally think the judgement is wrong, I think you might be over simplifying the judgement somewhat. Whilst it is quite clear that an idea does not attract protection, the exercise of skill and judgement can when it is used to express the idea. I think what the judge has done here is stretch the idea of originality and conflate idea with skill and judgement. In effect he seems to be saying that coming up with an idea requires skill and judgement and other areas of copyright require skill and judgement, therefore copyright should subsist in this work. I really don't like this judgement.

With respect to look and feel in software, whilst it is true a court will not look only at how two piece of software look on screen, it is still one of the things that is used to analyse whether a substantial amount of protected material, either qualitative or quantitative, has been copied.

MrP

Zillah

PopeBuckfastXVI wrote: »

IMO there is definitely a case of some sort of trademark infringement to answer, but not one of copyright.

Bad law.

This is exactly what I was thinking. The real issue going on here is that we have one company abusing the trademark of another company to encourage confusion between their products. This would be far more reasonably framed as a trademark dispute than a copyright violation.

I utterly loathe the notion that immitating a thing is the same as copying the thing. One owns copyright to a specific image, one does not own copyright of all things similar to the image.

robertcochran

MrPudding wrote: »

Whilst I pretty much agree with you, and I personally think the judgement is wrong, I think you might be over simplifying the judgement somewhat. Whilst it is quite clear that an idea does not attract protection, the exercise of skill and judgement can when it is used to express the idea. I think what the judge has done here is stretch the idea of originality and conflate idea with skill and judgement. In effect he seems to be saying that coming up with an idea requires skill and judgement and other areas of copyright require skill and judgement, therefore copyright should subsist in this work. I really don't like this judgement.

With respect to look and feel in software, whilst it is true a court will not look only at how two piece of software look on screen, it is still one of the things that is used to analyse whether a substantial amount of protected material, either qualitative or quantitative, has been copied.

MrP

Be careful with this issue of originality - all that means in relation to copyright is that it is produced by one specific person rather than another. It say nothing about skill or judgement. Can I again draw an analogy with software. When the original EU directive of copyright for software was being debated (I was the technical advisor to the Irish Government at the time) some EU countries (Germany in particular if I remember correctly) were arguing strongly that software needed some standard of originality of concept, not just a unique author, because of a legal case there. This was rejected at EU level and the Directive was very clear that the only criterion of originality was in relation to the person who created it. This I think can equally apply to images.

With regard to look and feel in software, my company was contracted by one side in such a legal argument about 15 years ago. We were able to show that even though the two software products were virtually identical in look and feel, nevertheless the internal structure and design were quite different. After we presented out report, the case was thrown out since it was clearly a new and independent expression of the same idea. The look and feel was irrelevant, since it would be expected that the same application would have very similar user interface.

Coming back to the UK case, I think the only way copyright could be infringed would be if the plaintiff had actually taken a copy of the original image and then done some post-processing to try and make it look a bit different, or something like that.

MrPudding

robertcochran wrote: »

Be careful with this issue of originality - all that means in relation to copyright is that it is produced by one specific person rather than another. It say nothing about skill or judgement.

That is not strictly true, at least in the UK. Skill, labour and judgement are factors used to establish if a work is original or not. This is for any work where there is a requirement for originality, but is particularly important where the work is derived form another source.

In this case the judge seems to be taking the skill, labour and judgement used in post processing to come up with the image to extend protection to the idea, a monochrome picture of certain landmarks with red bus. I think I can see where he is coming from. To him he is protecting the actual image, but to me it seems like merely an idea for an image.

robertcochran wrote: »

Can I again draw an analogy with software. When the original EU directive of copyright for software was being debated (I was the technical advisor to the Irish Government at the time) some EU countries (Germany in particular if I remember correctly) were arguing strongly that software needed some standard of originality of concept, not just a unique author, because of a legal case there. This was rejected at EU level and the Directive was very clear that the only criterion of originality was in relation to the person who created it. This I think can equally apply to images.

This is pretty much still the case. I presume you are talking about the Computer Software Directive (1991)? There is a slight complication in non-literal copying though...

robertcochran wrote: »

With regard to look and feel in software, my company was contracted by one side in such a legal argument about 15 years ago. We were able to show that even though the two software products were virtually identical in look and feel, nevertheless the internal structure and design were quite different. After we presented out report, the case was thrown out since it was clearly a new and independent expression of the same idea. The look and feel was irrelevant, since it would be expected that the same application would have very similar user interface.

Like I said in the previous post, look and feel is unlikely to be a sole reason for a finding of copying of software, in the non-literal sense, but it can be used, in conjunction with other things. There was a case in 1993 where it was held that there had been copying because there were similarities between, amongst other things, the format, menus and options. These similarities, along with the others, could not be explained by the defendant. So I do agree with you, in part, look and feel on its own would not be enough to find beach of copyright.

If you don't mind me asking, what is it that you do?

robertcochran wrote: »

Coming back to the UK case, I think the only way copyright could be infringed would be if the plaintiff had actually taken a copy of the original image and then done some post-processing to try and make it look a bit different, or something like that.

I think that is probably what most people, myself included, think.

MrP

robertcochran

MrPudding wrote: »

That is not strictly true, at least in the UK. Skill, labour and judgement are factors used to establish if a work is original or not. This is for any work where there is a requirement for originality, but is particularly important where the work is derived form another source.

Interesting point, but I presume this relates to the question of deciding if something is a derivative work, rather than a copy or an original. I don't think that really applies here, although maybe that was what the judge was trying to do (see if it could be regarded as a derivative work)

This is pretty much still the case. I presume you are talking about the Computer Software Directive (1991)?

Yes the '91 directive, which says clearly in ART 3 that "A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection."

Note the second sentence in particular.

And again I am presuming that this is the same for images, as it is the well established ground-rule for any copyright question.

If you don't mind me asking, what is it that you do?

Well, my career was in software, including running a number of companies, and also for a time being the key advisor on software/IT issues to the government, and on behalf of the Government in the EU, particularly when I headed up the IT unit in the National Board for Science & Technology. I am now retired, although working part-time with a number of charities, and trying to concentrate on my photography

MrPudding

robertcochran wrote: »

Interesting point, but I presume this relates to the question of deciding if something is a derivative work, rather than a copy or an original. I don't think that really applies here, although maybe that was what the judge was trying to do (see if it could be regarded as a derivative work)

Kind of... It can be a derivative work, but if it can be shown that there was a sufficient expenditure of skill labour and judgement then the work will be considered to be original. So, it may be a derivative but it will be considered to have originality in and of itself.

robertcochran wrote: »

Yes the '91 directive, which says clearly in ART 3 that "A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection."

Note the second sentence in particular.

Absolutely, I am not arguing with that. The comments around look and feel etc are merely about the tests for originality or that the work is the author's own intellectual creation.

robertcochran wrote: »

And again I am presuming that this is the same for images, as it is the well established ground-rule for any copyright question.

It is very similar...

Directive 93/98 wrote:

Article 6



Protection of photographs


Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.

Again, originality.

robertcochran wrote: »

Well, my career was in software, including running a number of companies, and also for a time being the key advisor on software/IT issues to the government, and on behalf of the Government in the EU, particularly when I headed up the IT unit in the National Board for Science & Technology. I am now retired, although working part-time with a number of charities, and trying to concentrate on my photography

Cool! Sounds like some very interesting times.

I fear we may be straying a little too far from this particular forums normal lines of conversation.

I will be having a chat with my IP lecturer about this judgement. I will pass you on her thoughts if you are interested...?

MrP

magicbastarder

MrPudding wrote: »

Leaving that aside, they were probably unlikely to to succeed. As Sinead correctly points out, you can't protect an idea. I am sure you remember the Dan Brown Da Vinci Code case...

MrP

still though, surely you wouldn't get away with writing a book with just the names changed and a few details shifted around? there's a line, even if the line can't be strictly defined and has to be decided on on an individual basis.

Freddie59

Paulw wrote: »

I think he saw - red bus, B&W rest of image, and bland white sky. That seems to be the train of thought in his judgement.

I would agree. The whole thing is ridiculous IMHO.

BlastedGlute

Ugh, two equally as rubbish images, both photographers should be charged for having no imagination.

MrPudding

magicbastarder wrote: »

still though, surely you wouldn't get away with writing a book with just the names changed and a few details shifted around? there's a line, even if the line can't be strictly defined and has to be decided on on an individual basis.

Of course everything will be decided on a case by case basis, but books are protected as literary works, and as far as the courts are concerned this means the actual words. I am not sure if there have been any cases where someone has effectively copied a complete plotline and simply changed the names and a few details…

There are two potential type of copyright infringement; they are literal, where the text is copied word for word, and non-literal. Non-literal is, I suppose there the essence or theme of a work is copied. In non-literal cases there needs to be a substantial copying, either quantativly or qualitatively. So, a kid that goes to wizard school might not be enough either quantativly or qualitatively, otherwise JK would be sued by Terry Pratchett, for example; but if there were loads of similar plotlines and devices used then there might be a case.

The Dan Brown case is actually quite interesting; here is an article that explains the main parts:

http://www.guardian.co.uk/media/2006/apr/07/pressandpublishing.danbrown

The authors of a book that said Jesus and Mary M got married had a kid and the bloodline still existed and a secret society formed around it which tried to foil the RCC’c evil machinations tried unsuccessfully to sue. So for non-literal copying the bar is fairly high.

MrP

magicbastarder

that was an interesting case in that the authors of THBATHG claimed that dan brown lifted plot elements of a book they claimed to be *factual*.

DaireQuinlan

magicbastarder wrote: »

still though, surely you wouldn't get away with writing a book with just the names changed and a few details shifted around? there's a line, even if the line can't be strictly defined and has to be decided on on an individual basis.

There's a great short story by Jorge Luis Borge on a similar theme:

http://en.wikipedia.org/wiki/Pierre_Menard,_Author_of_the_Quixote

If you read that, and it prompts you to read THE REST of Borge's oeuvre, then all the better

MrPudding

magicbastarder wrote: »

that was an interesting case in that the authors of THBATHG claimed that dan brown lifted plot elements of a book they claimed to be *factual*.

It might be worth noting that there is no "quality" requirement for copyright protection.

MrP

MrPudding

For any of you who might be in or near London there is a seminar coming up to discuss this case.

http://the1709blog.blogspot.com/search?updated-max=2012-01-26T17:30:00Z&max-results=5

Should be interesting. The QC from the winning side will be explaining the judgement and there should be another speaker critically analysing it.

MrP