Iusedfilm: Hi,It is clear from the two images that the Judge is/was blind. These people actually get payed to do this? Presumably, the defence lawyers actually knew what they were doing, which case why on Earth did they allow an admission and intent to copy as part of the defence????? If it was not for it's possible consequences, this would actually be very funny. You know, British humour :)
Read the post below and the corresponding link.
Holgs: In case anyone is still interested in this topic, I've done up a bit of a summary of the case and what it actually means, minus some of the hype:
I don't think most people noticed that the second image here isn't actually a single photo, but is a photoshopped collage made up of 4 photos from the defendant, and a stock image from istockphoto of the bus.
If all you're doing is photographing a similar scene, then you've got nothing to worry about.
Great article and summary of the case!
Should put to bed some of the overreaction that has come out of this case in the first place.
Charles King: While the judge here is manifestly wrong, the real idiots are the lawyers for the defence, who failed to advance a argument of independent design.
The images show significant differences in composition and the mere juxtaposition of two iconic images with differences in colour saturation is a common technique that doesn't confer any original creation in itself. It would have been trivial to argue that, while Houghton was aware of the 2005 work, he was also aware of many other similar works, and set out to create an image that combined these iconic elements in a novel and distinctive manner. As a few people have mentioned in this thread, it's clear to any photographer that the composition and framing of the second image is superior to the first.
Basically, the defendants shot themselves in the foot.
If Copyright Law is to remain true to the purpose of promoting useful creation, though, it should deny protection to kitschy tourist-puke photos like this anyway.
The lawyers could hardly use that defence when the defendant had previously been taken to court for trying to use that very same image in a commercial setting without obtaining prior consent or paying royalties.
So the defendant shot himself in the foot by first trying to "steal" the image and subsequently trying to copy it because he didn't get away with stealing it.
P2L1: So, Fielder now owns arguable rights in all pictures of red busses on Westminster Bridge on a cloudy day. Cool. I'll hire his barrister, go to Arizona, and get the rights to all red bus pictures on the London Bridge. We'll be rich, and have all the other bridge pictures tied up forever, in no time at all!
No he doesn't. Go read the judgment in full.
Fielder won the case because the defendant admitted to copying Fielders image (he actually set out to do that).
The defendant lost the case not because the images were similar but because he copied the original image.
The judge said that, had the defendant gotten someone else to take a picture of a bus crossing the bridge with houses of parliament in the background that would have been fine. Or had he taken a picture without any knowledge of the first that would have been OK.
shelesq: Don't count on other judges coming up with the same decision given virtually identical facts. The kiss of death is a defendant saying that he/she saw the copyrighted image and then made his/her own version of the copyrighted material. The judge will hear that as, "I copied the photograph."
Teru Rinshou (Jan 29, 2012 at 14:52:48 GMT) outlined what should have been the backbone of the defense.". . . none of the defense lawyers had the common sense to type "london bridge, red bus, black and white" in Google images".The testimony should have been that I saw hundreds (or whatever number is realistic) of "London bridge, red bus, black and white" pictures and I have no recollection of seeing the copyrighted photo.
I lost a copyright infringement case when my client insisted on saying that he had a copy of the copyrighted material but.....".
The problem here is that the defendant had previously been to court (and lost) on account of using the image without consent and/or paying royalites.
So he could have hardly used a defence of "I saw hundreds of images....".
Gordon Urquhart: Should these people be sued as well?
C'mon! it's in plain view! Plus, the images do not even look the same! Concept - yes. Accurate reproduction - Absolutely not.
>by the end of this saga, Karl, I truly hope you will have learned the correct spelling of copyright ;)It is simply not right to write of righting wrongs with a wrong writing of rights.
Touché. I'm ashamed of myself :s.
>By that argument he should now be able to purchase a much more similar image by a completely different photographer as long as that photographer didn't intend to copy the image...
That's actually correct. The judge himself summed this up when he said that if the defendant had told someone else to go and take a picture of a bus crossing the bridge with Westminster in the background (using a color highlight method) then this would have been fine.
>Too much credit is being give to this piece of 'art'.
On that point I don't disagree with you at all :). But I suspect that the original image is of some value to the photographer because it has apparently appeared in a lot of tourist materials, for which he receives royalties.
First of all, copywrite laws were not invented when the Mona Lisa was painted so there is no copywrite on the Mona Lisa. Which is precisely why you see so many post cards of it and different depictions of it.
Secondly no one has the right to stop someone from taking a photograph of something in public - even the judge said that had he gone there to take a photograph and it just happened to come out looking like it did that would have been fine.
The point is that the defendant specifically set out to "copy" the main elements of that specific image. No other image influenced him, it was that very image that he decided he wanted to duplicate, as close as possible without infringing on copywrite.
Turns out he was too close for the judge because it didn't matter how many differences there were but rather how many similarities there were.
Did those people use the original image in an attempt to duplicate it?
That's what people are missing here. The defendant specifically set out to make a copy the original. He admits as much.
If the defendant hadn't known about the original and had just happened to take a similar-looking photo (by accident) then the judge would have ruled differently.
Tape5: This is yet again another example of ''expert'' judgment on an issue, in this case digital photography, where the judge has no expertise of idiosyncrasies and details in what is meant by digital or the term photography. This is hideous misjudgment. I can ask Sir Sugar to fund a three months shoot of the Westminster Bridge by a group of 1000 professional photographers. Each assigned to take 20,000 shots of the Bridge and its traffic day and night. After 90 days, we have 1.8 billion photos. Then I get a Photoshop nerd to batch process combinations and permutations of all affects on each photo to create 1000 variations on each photo. We get 1.8 trillion. A few dual six cores can do it in a few days probably. Then I publish and copyright each one of them. I can then sit and sue anyone’s pants who will take a shot of this magnificent bridge again !!
Commercial use is so important with copywrite because infringment is a civil offense. So it's up to the victim to take someone to court for infringment.
The only reason anyone would go to the expense of taking someone to court for copywrite infringment is if it were likely to result in financial gain. But that's not to say someone could do it for the principal of the matter.
Put another way... your photos are protected by copywrite. If some kid copies that image and puts on his mantle piece and passes it off as his own, you might politely ask him to stop passing it off as his own. But you most likely wouldn't take him to court.
But, if someone stole your image and put it on their product in order to advertise it... advertising that would have otherwise cost thousands of pounds (or millions in some cases) you'd be more likely to pursue it in court.
J R R S: This is so Wrong!...
The technique is in common use, the sceen is common and the object is commen.
The image is very pridictable and does not constitue a copy right of processing technique or photography.
This is like copy righting a portrait shot, shot with a low DOF and digitaly processed with a soft focus effect.... or a macro of a bee processed to look like the world in UV...
The work was not used - copy right was not broaken.... this needs to be appealed!
>The work was not used - copy right was not broaken.... this needs to be appealed!
Read the full judgment. The guy purposefully set out to copy the original image (i.e. he did use the original image) and put it on his packaging of Tea in order to improve sales. These facts are not in dispute.
The judge also said that if the defendant had never seen the original image then he would not have ruled as he did. It was specifically because the defendant intentionally set out to copy the image (but tried to make it different enough so that he could get away with it).
Furthermore, in the final ruling, the judge ordered the defendant to just remove the image from the tins of Tea.
Carl Sanders: People take ideas from each other everyday and interpret them in their own style. We should all go down to the same spot and take pictures of red buses with Nikon D5100 which have inbuilt colour selection with B/W backgrounds. How can this be an infringement of an idea, it has been around long before Justin Fielder decided to do it. As he mentions he took the idea from Schindler's list.
It is such nonsense.
The point being that just because you break the law doesn't make you a criminal - much like just because you were caught speeding doesn't make you a criminal. But you still break the law if you're speeding.
@wetsleet. Copywrite infringment is a civil offense, not a criminal offense. Although wilful and persistent acts of infringement can be prosecuted in a criminal court.
So infringing on copywrite doesn't make you a criminal (necessarily), which is why it is so tied up with the commercial aspects of each case.
>And the point is, it makes criminals of everybody whose artistry pays homage to another - it is little comfort to those who believe in the law to be told, sure you're a criminal, but no matter because nobody will bother to prosecute you because there is no money involved
Hardly makes people criminals. In fact, even the defendant isn't being treated a as a criminal. He's just been told to remove the image from his tins of Tea - which is fair enough really.
But you (and every tourist) taking a similar picture is not going to go and put that image on a consumer product in an attempt to generate sales of said consumer product (i.e. the Tea that the defendant produces).
The bottom line (as the Judge summed up) was... Was the defendant's photograph of his own "intellectual creation".
The answer to that is clearly not because the defendant took the original image from a stock library and admitted that he tried to create a similar image. So it's not like he could defend that it was of his own intellectual creation.
Zyolo: Dissapoiinted by Justin Fielder's action in the first place. Maybe if the Judge was a photographer his judgement might have been different. I wonder if Mr.Justin Fielder trully belives that what he did was a first. Maybe we'll se him before the law courts? Very very sad.
Justin Fielder took this action because the defendant had previously tried to use Justin's image commercially without consent and/or paying royalties.
Subsequently the defendant took a similar picture in order to avoid having to pay for the commercial rights to the photograph.
Copywrite law protects the artistic expression of an idea so why wouldn't you take someone to court who is trying to gain commercially off you in that way?
Karl K Grambow: I think a lot of you have missed the point (which to be fair hasn't been accurately put across in the article either).
The defendant had previously tried to use the original photograph in a commercial setting. But the claimant said "hang on, that's my photo, if you want to use it commercially then pay up". And they went to court over this.
Later on, the defendant decided that if he couldn't use the original photo, he'd take one that was similar so that he could avoid having to pay royalties.
The problem is that he used the original image as the idea with which to compose his photograph. And he did so expressly for commercial gain (and the claimants ultimate commercial loss). The fact that there are many other such-like images was irrelevant in this case because the defendant admitted in court that he used the claimants image as his inspiration.
So the issue here is that he copied someone elses idea (he addmitted as much) specifically for commercial gain.
>There is no copyright in ideas - sorry but the judge got this one completely wrong.
You're right, there is no copywrite in ideas. But you can apply copywrite to the artistic expression of an idea. The law says so and all the judge was doing as applying the law as it's written.
You could aruge that the law as it's written is wrong but then that's another debate.
>Accepting that I have deliberately copied the look, why do I have to sell my photo to commit an offence? Copyright is not about commercial exploitation of a copied image...
You are quite right in that it is not about commercial exploitation. And maybe in that case you are just as guilty.
But, why would the victim of copywrite theft make a claim against you when the relative commercial gain from taking you to court is inconsequential compared to taking someone to court who is profiting more?
> I see a nice head-and-shoulders portrait ... on display in a studio photographer's window, and try to create the same look at home, because I don't want to pay studio prices. Guilty?
Not guilty, but if you used your image commercially then you may have a problem IF it is felt you copied the artistc expression of original.
>Ideas are not copyrighteable.
It's not as simple as that. You cannot copywrite an idea but copywrite does protect the creative or artistic expression of an idea. And essentially, based on the composition, subject, lighting, etc... the judge felt that the second image infringed upon the artistic expression of the first photo.
>The only way this case should have been handled is as a trademark issue because both pictures were used to sell stuff.
You may be quite right - I don't know enough about the law to say otherwise but in this case I'll defer to the judge, whom I'm sure knows more. Then again, maybe not :).
I think a lot of you have missed the point (which to be fair hasn't been accurately put across in the article either).