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Similar, but not copied, image found to breach copyright

By Richard Butler on Jan 25, 2012 at 02:52 GMT

Amateur Photographer magazine has published an interesting story about a copyright infringement case of similar, but not directly copied, images. The issue of copyright is thorny, contentious and often misunderstood but this case sheds some light on the current attitude of courts in the UK. Despite significant differences between the two images (there was no implication that the second image was a duplicate of the first), the court found that the second image copied substantially from the 'intellectual creation' of the first (that is the elements that can be protected by copyright in the original image, including a consideration of the composition, lighting and processing of the image).

Amateur Photographer quotes photographic copyright expert Charles Swan as saying: 'The judgement should be studied by anyone imitating an existing photograph or commissioning a photograph based on a similar photograph.'

Meanwhile, Jane Lambert - a barrister specialising in intellectual property law - has written an excellent blog post on the case, in which she concludes 'although I follow the logic I feel very uneasy at Judge Birss's decision in Temple Island. It seems to come very close to protecting copyright in an idea as opposed to expression.'

The judge concluded that the claimant (Justin Fielder)'s image is original and that the intellectual creation resided both in the compositional elements of the image and the contrast aspects. Specifically, Judge Birss QC highlighted two visual contrasts: 'one between the bright red bus and the monochrome background, and the other between the blank white sky and the rest of the photograph.'

He also took into account the evidence that Mr Houghton was aware of Mr Fielder's image (the two had previously been to court when they had failed to reach a licensing agreement over Houghton's previous infringement of Fielder's copyright), to conclude the similarities were causally related.

In the end, Birss  said a difficult decision hinged on a 'qualitative assessment of the reproduced elements.' 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.

Judge Birss also said that a series of images showing buses on Westminster Bridge and of red London icons on monochrome backgrounds submitted by Houghton 'worked against them because the collection has served to emphasize how different ostensibly independent expressions of the same idea actually look.'

Justin Fielder's copyright in his image (top) was deemed to have been infringed by
Nick Houghton's image (bottom).

Comments

Total comments: 738
12345
diy
By diy (Jan 26, 2012)

What is concluded here

http://www.popphoto.com/news/2012/01/uk-ruling-says-similar-composition-
enough-violate-copyright

is what we worried about:

"My worry is that this sets a precedent like you see with British libel law, whereby it's extremely easy to allege, and difficult and expensive to defend, which causes many companies to fold rather than fight."

2 upvotes
RicohGRDIV
By RicohGRDIV (Jan 26, 2012)

thats the problem...easy to allege, expensive to defend

1 upvote
Anysia
By Anysia (Jan 26, 2012)

First photo: bus obscured by wall, leading lines all over the place, too much open space above the towers, people walking in front of the bus, obscuring it even more.

2nd photograph: better composition, strong leading lines, bus bracketed by Westminster and clock tower, people walking on the side. Overall a more appealing photograph.

Maybe that's the reason why Fielder sued.

4 upvotes
eNo
By eNo (Jan 26, 2012)

But aren't you forgetting the innovative selective color [rolls eyes]

0 upvotes
bbrhuft
By bbrhuft (Jan 26, 2012)

So, to explain in lay terms - if this law was around in the earth 20th century, Pablo Picasso could have (if they fell out) sued Georges Braque for adopting, sorry, stealing his Cubist style, even if Braque's cubist paintings were of different subjects and scenes. It is the 'style' that's deemed copyright, not the subject of the photo (or indeed painting or sculpture).

Under this law, someone who invents an artistic style owns it's copyright, whether it's Red Bus-Gray Backgroundism or Pointillism, Cubism, Surrealism or any old -ism. This has huge ramifications not just for photography, a painter or sculptor or other artist could sue another artist for adopting the original artist's style.

As such, I agree with Jane Lambert blog entry - that this ruling contravenes article 9 (2) of TRIPS, which forbids the copyrighting of "ideas, procedures, methods of operation or mathematical concepts" i.e. ideas and procedures that form an artistic style.

Comment edited 11 minutes after posting
3 upvotes
Vlad S
By Vlad S (Jan 26, 2012)

Which exactly words in the ruling lead you to your conclusions? Because I can't see anything in it to support your claim.

0 upvotes
bbrhuft
By bbrhuft (Jan 27, 2012)

This part:

"I have not found this to be an easy question but I have decided that the defendants' work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant's work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the...

...visual contrast features...

...with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of clichéd London icons."

The "visual contrast features" are Red Subject on a Gray Background. I think is equivalent to an artistic style and as such, I think the Judge would have decided in the claimant's favour if he originated Cubism & used that effect to create a unique and "visually interesting" image. This is wrong.

1 upvote
tedtedted
By tedtedted (Feb 4, 2012)

Yeah, basically the judge is a moron and has no clue about photography. He's just extended copyright law into the absurd, where instead of it protecting the copying of your images, it now extends to copying ideas and techniques that are trite and commonplace, but that have absolutely nothing to do with copying a photograph but more to do with idea protection, which is not how photo copyright is supposed to work.

Comment edited 4 times, last edit 3 minutes after posting
0 upvotes
JensR
By JensR (Jan 26, 2012)

Sorry, I mad a mistake.
No more selective colouring for me, either.

Comment edited 2 minutes after posting
2 upvotes
QuentinUK
By QuentinUK (Jan 26, 2012)

A red bus or a red telephone box in London with the rest monochrome is an old cliche. (pun). I can find hundreds of such images on the web:-.

Red bus + big ben B&W. http://www.maidenhead.cc/bin/view/Main/CompImages2009to10A

London Bus by Ingrid Gledhill (2009)

Comment edited 2 times, last edit 2 minutes after posting
1 upvote
meanwhile
By meanwhile (Jan 26, 2012)

Careful, you'll give Justin more people to sue.

0 upvotes
ThomasCrown
By ThomasCrown (Jan 26, 2012)

I don't understand what all the fuss is about, both photographs look like the were taken by a 10 year old tourist and put into PS. However, this ruling is a disaster for photography, just look at flicker, using the judges reasoning 1/2 the photos have something in common with the other 1/2. Perhaps these shutter pressers should remember 'Just because you buy a Nikon does not mean you are a photographer" Photoshopper yes, photographers no

4 upvotes
Tom Cody
By Tom Cody (Jan 26, 2012)

Oh no, the adult film industry is next. I'm pretty sure I have seen the same scenarios over and over. Copyright infringement!

7 upvotes
RicohGRDIV
By RicohGRDIV (Jan 26, 2012)

yeah, the..., followed by the... then the ...., finally the ....

LOL

0 upvotes
Azher NZ
By Azher NZ (Jan 26, 2012)

Well, we may as well just sell our cameras as I'm sure the portait, landscape, night time and the flower shots have all been done before.

In fact as far as I can tell every scene in a movie has already been composed too. The news is all regurgitated shots and most talk shows have 3-4 guests. It's all been done before.

The law is an ass and the 'judge' is obviously the hole.

9 upvotes
Nikono
By Nikono (Jan 26, 2012)

This is complete nonsense.
Everything that can be photographed has already been photographed, if I were to follow the court ruling. I cant shoot at all.
Creative expression by a lawman is a oxymoron. The state must sue the judge in question to prevent this ruling become the basis for further stupid legal intervention in something as basic as creative expression.
If any one out there is asking why creativity & innovation is fast disappearing from UK, then show them this court ruling.

13 upvotes
LJohnK2
By LJohnK2 (Jan 26, 2012)

...absolute rubbish....Judges interpreting qualitative elements in photographs for Solicitors in pursuit of cash.....this is a sad commentary on greed....not a complex legal or artistic argument

3 upvotes
HotPepper
By HotPepper (Jan 26, 2012)

What the hell?! This is not a copyright breach! What is wrong with the justice system!

2 upvotes
OneGuy
By OneGuy (Jan 26, 2012)

Good thing the copyright on blue jeans is expired. With a judgment like that we'd all have to toss them otherwise

3 upvotes
kg56
By kg56 (Jan 26, 2012)

But perhaps you cannot photograph anyone wearing blue or any other color jeans! It's been done before.

2 upvotes
Just Ed
By Just Ed (Jan 26, 2012)

I don't buy the logic. The technique used is just too common for one person to claim they "own" it. And subject wise to my understanding the Red Bus and Big Ben are seemingly commonly photographed subjects (mind you am not a Londoner). If it had been a more similar composition I could understand the judgement.

4 upvotes
Vlad S
By Vlad S (Jan 26, 2012)

I would like to remind that in the written literature the use of characters developed by a different author is a clear and established copyright violation. This falls under derivative work, and such third party reuse of original characters was prohibited by Salinger (Catcher in the rye), Lucasfilm (Star Wars), Anne Rice (Vampire Chronicles), George R.R. Martin (A Song of Ice and Fire). The courts always upheld their right to stop the use of their artistic creations by others, even despite a strong transformative component.

From this point of view, this ruling is far less restrictive. It does not ban taking pictures of buses with Big Ben in the background:

"...I sympathise with Mr Houghton in his wish to use an image of London landmarks. He is free to do so. ...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. ...Such an image would not infringe."

0 upvotes
diy
By diy (Jan 26, 2012)

That is irrelavent, since the first photographer does not own the landmarks.

The judge said that the second photographer copied the composition, but that is shaky too, since the compositions are obviously different.

Then the red on black and white, which is not the first photographer's creation.

Finally the white sky, which probably is the first photographer's creation, but disgusting anyway. Maybe that is the real reason--the second photographer copied something of really bad taste. The judge is simply annoyed.

Comment edited 2 times, last edit 48 seconds after posting
4 upvotes
SamKnopf
By SamKnopf (Jan 26, 2012)

As I'm both a photographer and a law student, I found this quite fascinating. I agree that the judgment is a little bit surprising, but if you read the judge's words you will see that there is some logic to them. The issue is not really about the right of anybody to make such a photograph. Indeed, in arguments at the trial, the defendants showed evidence that many other similar images had been taken. However, the judge believed that the defendants only sought out these other images after they had seen Fielder's photo. Their fault lay in the fact that it was Fielder's photo that gave them the idea, which they would not otherwise have come up with. Suppose somebody gets a rough sketch for a house design from an architect, likes it, and then goes to a different architect with it to design the actual house. Shouldn't the first architect be compensated for the idea? They are being asked to pay for stealing an idea, not for copying a photo.

2 upvotes
diy
By diy (Jan 26, 2012)

But does the law specifically say you cannot copyright an "idea"?

1 upvote
citizenlouie
By citizenlouie (Jan 26, 2012)

This idea is most fascinating. I have come up quite a bit of ideas myself, but if I found someone who copies the way I dress up, the way quirky way I talk, or use of color the way I do, then if I can prove that, I can sue someone.... It looks like I can be rich just for being myself....

The plaintiff's idea is not even original, but maybe he was the first one to prove such.... Kind of like finders keepers or barbarians occupying another person's land/property and claimed he was there first.

When will laws make sense to common people, so we don't need lawyers and legal clerks to translate what they're actually talking about so we don't violate the law by accident. But then the legal profession will have to downsize quite a bit, positively correlated to the economic condition.

Comment edited 2 times, last edit 2 minutes after posting
1 upvote
Alan Brown
By Alan Brown (Jan 26, 2012)

good summary Sam..

This issue is not about ideas.. or as so many respondants see, as 'you can't photograph anything anymore'.

everyone seems to want freedom on their terms. the music industry is the same..people want music for free.. stuff the musician! however if they were the musician working for nothing.. that would be a different matter wouldn't it.

the claimant here is protecting a his income.. not stopping anyone standing in the same place waiting for a real situation/scene to arrive which anyone would be free to do; as the judge acknowledged.

talk about knee jerk reactions...:(

Comment edited 19 seconds after posting
0 upvotes
diy
By diy (Jan 26, 2012)

Will they appeal the case?

0 upvotes
Blackubuntu
By Blackubuntu (Jan 26, 2012)

I think it would be nice to email the judges office with red bus on b&w pictures. Here are some email contacts at the court:

Patents County Court
Listing for Patents County Court

With effect from the 1st October 2006 the Clerk of the Lists Office assumed full responsibility for the listing of all cases in the Patents County Court.
All enquiries regarding listing should be made to this office and not to the Clerk to HHJ Birss QC.
Contact:

Doug Bell tel 020 7947 7717 fax 020 7947 7345
doug.bell@hmcts.gsi.gov.uk

James Kelly tel 020 7947 7717 fax 020 7947 7345
James.Kelly@hmcts.gsi.gov.uk

Michael Mcilroy tel 020 7947 7717 fax 020 7947 7345
Michael.Mcilroy@hmcts.gsi.gov.uk

0 upvotes
random78
By random78 (Jan 25, 2012)

At first glance the decision seems to make sense. It is clear from the proceedings that second company wanted to use the first image. But since they didn't want to pay the fees to the first company so they decided to make their own version. And they made it a bit different to avoid being a pure copy. So there was a clear intent to copy.

But looking at it a bit more deeply the argument doesn't hold. Sure they could not use the original image without permission - that was copyright violation. However making their own version of the image should not be a problem considering that the first image itself is not an original idea. Since a number of such images have been created before the first image, and the first image is just one of the many versions, so it should be OK for anyone else to come up with another version and use it. There seems no reason that second company should be required to use the image from the first company and pay for it instead of coming up with their own version.

Comment edited 2 times, last edit 1 minute after posting
0 upvotes
Vlad S
By Vlad S (Jan 26, 2012)

"Since a number of such images have been created before the first image"

This has not been proven. All images that the defendants submitted to the judge were either undated, or produced after 2006, or missed one of the creative elements. So the judge did not have any evidence that there were in fact earlier images that were as similar as Fielder's and Houghton's are.

0 upvotes
Lan
By Lan (Jan 25, 2012)

It seems that legal training is the most important skill a photographer now needs :(

Are the images the same? IMO; No! One is taken ON the bridge. The other is taken from a flight of stairs NEXT to the bridge. One bus is hidden by the parapet of the bridge, the other isn't. The bus is a stronger element in the 2nd image.

Skies are often white when overexposed, the easiest way to mask that is to convert to B&W. So, white sky B&W is common.

A red bus against a desaturated London is a common composition; Google suggests there are at least 10 other images with Big Ben alone. Hundreds of a red bus against other parts of London.

How long would it take to recreate the processing of this image? ~3 mins?

Selecting the bus is the slow bit; and that wouldn't take a minute using MagneticLasso.

Convert to B&W to make a blown out sky acceptable; 30secs. A bit longer if you use Channel Mixer.

It's a common idea, which is easy to re-create. No-one should be able to sue over something like this!

1 upvote
DamnYankee
By DamnYankee (Jan 25, 2012)

No more taking pictures of the Grand Canyon, the night sky, (the moon), the Thames, Stonehenge, the Queen, -- gee, what's left to photograph that hasn't been shot and published under copyright before? Traffic passing before Parlaiment? Will this judge order the camera police to be checking people's SD cards for duplicate images?

2 upvotes
tugelbend
By tugelbend (Jan 25, 2012)

I took a picture of a red bus going over Westminster bridge 20 years ago on a dull grey day.
Looks like they both copied me! Where do I lodge my copyright complaint?

Seriously though, lets just hope he appeals and wins, this was a ridiculous judgement by Birss.

Google red london bus on westminster bridge and look at the images.......

Comment edited 4 minutes after posting
5 upvotes
prohidium
By prohidium (Jan 25, 2012)

I suspect this photo is an example of photoshop 101 in England and there are probably 1000's or tens of 1000's of photos that are that similar. If this was me, I would have dug up many examples that would have preceded the date of the image thought of as copyright protected.

2 upvotes
John Crawley
By John Crawley (Jan 25, 2012)

Sorry, the judge blew this one. he doesn;t understand design and composition. He should stick to law and let us stick to photography.

John Crawley

1 upvote
diy
By diy (Jan 25, 2012)

In that sense, any portait photos are in most danger. Since usually the ears are on both sides of the face and the eyes are above the nose. All compositions are similar. Even if someone has a really big nose, that is still considered similar composition.

There are also only limited ways to can do the lightings. ...

Comment edited 37 seconds after posting
0 upvotes
Heywoodphoto
By Heywoodphoto (Jan 25, 2012)

I find this whole thing upsetting. There is too much confusion about copyright, what it means and how it's applied. The courts can't even make head nor tails of it. What's worse is that I read this article with interest until I saw the two images and realized that they were both s**t.

1 upvote
jimread
By jimread (Jan 25, 2012)

Thank goodness for that, never again will we see the "Lone Tree and The Sky"

Hooray to the power 10

Eileen just reminded me of Cliff Richard's "Summer Holiday" [not that she saw it, well not ALL the way through]

Comment edited 4 minutes after posting
0 upvotes
Juraj Lacko
By Juraj Lacko (Jan 25, 2012)

So from now on nobody ever ever can take a picture of red bus on Westminster bridge cos already 2 photographers did so before. What are they thinking? So who gives the right to one to take picture and stop other for doing so? We people are apparently developed monkeys so why shall we stop doing what we know the best. Repeat one after another...

4 upvotes
Snaaks
By Snaaks (Jan 25, 2012)

The alphabet has 26 ............

Comment edited 23 seconds after posting
0 upvotes
Roman Goc
By Roman Goc (Jan 25, 2012)

What about taking photo of the sunset? Milions of them are nearly identical.

0 upvotes
Gerard Hoffnung
By Gerard Hoffnung (Jan 26, 2012)

My wife would argue that I have taken most of them :)

0 upvotes
Scorpio_2005
By Scorpio_2005 (Jan 25, 2012)

After reading all this thread, I clearly realize WHY we all now buy goods with a sticker "Made in China". While the West feeds real well its countless crowds of lawyers and judges who are "working" hard on such ridiculous cases, the Chinese guys work hard to produce things. The West is doomed. And yes, I agree this judge needs a shrink.

Comment edited 2 times, last edit 9 minutes after posting
5 upvotes
GaryJP
By GaryJP (Jan 25, 2012)

Well the problem with that is that if you try to sell goods you have created in China, there's a cheap knock-off on the street before you can blink. And NO legal redress. Filmmaker friends of mine see their movie on the street BEFORE it even hits the cinemas.

0 upvotes
chlamchowder
By chlamchowder (Jan 25, 2012)

So does this ruling mean that this particular application of using selective color to highlight a bus is prohibited? I really don't like this decision, because I thought the point of copyright was to prevent others from profiting by copying or making derivatives of the original work. And when I say 'original work', that doesn't include the idea or concept being used.

I thought that in order to prevent others from taking advantage of an idea, you would have to patent it. IMO, this is an abuse of copyright. The judge is not thinking about the intent of the law, which is to encourage innovation, not prevent it.

2 upvotes
vegwolff
By vegwolff (Jan 25, 2012)

I've just noticed too, it's a different bus, one can tell by looking at both the colour of their front grills and advertising on their sides, and of course one has passengers alighting while the other is in motion along the carriageway. Therefore, how can it be copyright if much of what is in the photo/artwork is so different? Apart from a not too disimilar composition, in that Big-Ben and the Houses of Parliament are the backdrop to a red, albiet different, omnibus, it is the touch up techniques that are therefore in question. If this is the case, as it seems from the judgement, then dear oh dear, oh dear oh dear oh dear, dear dear me. It is a slippery slope upon which they slide which such a ruling.

Comment edited 14 minutes after posting
2 upvotes
IPCopycat
By IPCopycat (Jan 25, 2012)

I would like to point out, in copyright law, the word "original" does not mean that a piece of work has to have been novel or creative. It means that the piece of work must have originated from the author.

Two people independently taking a photo will both have copyright in their respective photos. That is to say, a copyright protected photograph of Big Ben does not necessarily preclude others from taking photos of Big Ben. However, if all the photographer did was to click the shutter, then no court will give copyright to the "scene". All that will be protected is that particular photograph.

In this case, the judge decided that copyright subsisted in the "scene" because the first photographer had manipulated the base photo (i.e. removed the sky, made the background black and white etc).

So it doesn't mean that you can photograph a dog and claim copyright to all photographs of dogs.

Comment edited 6 minutes after posting
1 upvote
wetsleet
By wetsleet (Jan 25, 2012)

what about all dog photos that have been 'manipulated' in a special way to make their coats appear especially sharp and defined, you know, with USM in Photoshop.

Comment edited 53 seconds after posting
0 upvotes
Revup
By Revup (Jan 26, 2012)

I recently went on a photographic holiday with a professional photographer. He took us to some of his favorite 'haunts' and we all 'copied' the kind of photographs we had seen published by him from these locations.

Now if I took the photo with my camera, on a different day, in different light, but with his assistance, and then published that same photograph for money......where are the intellectual property rights there? considering I paid a lot for the holiday in the first place?

And if I were to go back to that same scene on my own at a later date, and set the shot up the way the professional had shown me, take the picture and sell it, where are the intellectual property rights there?

The law is a nonsense, and nature should be free to view and photograph. If you are a pro making your money, and someone copies you, isn't that flattery? If you are a pro and someone copies you, it is up to you to deal with the competition and market your images better....such is life!

The Rev

0 upvotes
Michael Berg
By Michael Berg (Jan 25, 2012)

As a photographer with a free will it is very hard not to get offended by this ruling. The bulk of the commentary clearly shows this.

However, it is hard to ignore the creative similarity between these two pictures. If Houghton was aware of Fielder's image, and others like it, and decided to create a similar image (and let's face it, they are very similar), then I would have to agree with the judges here. Houghton used the creative talent of Fielder and produced a product for which he claims all credit and creative copyright to. That just isn't right.

If you create a black soft drink and call it Goga Gola, then you're going to get into trouble, even if the bottle is slightly different or the stuff inside doesn't taste like the original.

I think the worst part of this story is that Houghton so obviously isn't being original, even with all that creative originality to draw from as there is in Fielding's photo.

0 upvotes
Vlad S
By Vlad S (Jan 25, 2012)

Houghton was not only aware of that image, he actually first used it commercially (tea packaging) without licensing, and was sued by Fielder's company and entered into a licensing agreement: http://www.bailii.org/ew/cases/EWPCC/2011/21.html

Only after that he took the shot in question explicitly to avoid paying the license fee. Every single feature that exists in Houghton's photo is there because it was present in Fielder's image, not because of Houghton's free will.

Comment edited 6 minutes after posting
1 upvote
chlamchowder
By chlamchowder (Jan 25, 2012)

I can see the similarity between the two pictures. However, this ruling has heavy implications, because it sets the precedent that copyright applies to an idea as well as the original work itself. If you want to prevent something like the 'Goga Gola' example, you apply for a trademark. If you want to prevent others from taking advantage of an idea, you apply for a patent. Copyright shouldn't extend that far.

Houghton's image is clearly not a copy of the original image or a derivative work - it just uses the same technique on the same subject/location. I hope the judge understands the chilling effect attached to this ruling.

3 upvotes
Vlad S
By Vlad S (Jan 25, 2012)

"it sets the precedent that copyright applies to an idea as well as the original work itself." – no, it's not that simplistic. The circumstance is also taken into account.

The judge explicitly wrote, that if Houghton asked a photographer to take a picture that would feature a bus, the Big Ben, and the Parliament building it would not have constituted infringement.

It became an infringement only because Houghton knew of Fielder's picture and nobody else's, then copied all of creative solutions from it. The fact that later on he found other similar images does not negate the intent to copy Fielder's work, not any of the others that he gave as examples, or all of them collectively.

Comment edited 27 seconds after posting
0 upvotes
diy
By diy (Jan 25, 2012)

Still, it is a dangerous precedent. The key thing is that none of execution of the "copied" ideas are exactly the same as the original, they are only similar.

Take the composition for example, they are---to a photographer---very different. Yet the judge can still argue in this case that they is similarity between the two. That is a dangerous precedent.

Like I mentioned early, to me, the only obvious similiarity is red object in front of b/w background. But this very exact idea is not the first photographer's creation.

Comment edited 2 times, last edit 59 seconds after posting
0 upvotes
diy
By diy (Jan 25, 2012)

"The bus is a Routemaster, driving from right to left with Big Ben on the right of the bus. The riverside facade of the Houses of Parliament is part of the image. The bus is on Westminster Bridge (albeit in a different place) in both images."

These specific things that the judge used as evidence are so vague, that is the problem. How can you claim
"The bus is a Routemaster, driving from right to left with Big Ben on the right of the bus" is an original/artistic creation?!

If you stand at the spot where people usually take pictures, when the bus comes, you click the shutter, the composition has to be similar, since you cannot move the buildings. This is just like you go to a popular tourist spot and take a "I've been there" picture, everyone's composition will be similar. Since you have to stand at the same spot, facing the same direction, the only thing that can differ is how you crop. And in this case, the crops are different in the two pictures.

So that argument is simply flawed.

0 upvotes
Vlad S
By Vlad S (Jan 26, 2012)

Actually the judge wrote that taking such an image would not constitute an infringement:

"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. ...Such an image would not infringe."

What the judge has recognized is that Houghton tried to weasel his way out of paying for an image he chose:

"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?"

Comment edited 20 seconds after posting
0 upvotes
RHWeiner
By RHWeiner (Jan 25, 2012)

Does this judge not know how to search on the Internet for similar images? As RBFresno has pointed out there are other duplications...and I dare say that these may even predate the images in this case!

With the Tsunami of digital cameras and digital images over the past number of years this kind of situation is BOUND to happen again and again. If the 2nd photographer had taken the 1st one's image and then called it his own I can see the need for this case. In this instance I think it was a matter of this was the ONLY view available. Go a bit more to the left and you get run over, go to the right and you're in the water. Go across the street and it's unlikely you'd get this shot.

As a member of a particular camera club for many years I saw hundreds of images of the Paloose area in the state of Washington, US. Invariably they looked alike as there was really only one vantage point to do the photos...ergo, nearly identical images.

0 upvotes
Michael Berg
By Michael Berg (Jan 25, 2012)

I think we can all agree that the two images being discussed here were not produced by tourists using compacts. A substantial amount of post processing, following a specific creative theme was applied. Worse, Houghton *new* of Fielding's work and copied the creative aspects almost directly over to his own work.

Let's not forget that anyone can take a photo of a bus. Fielding did a lot more than that, and it was these extra creative aspects that the judges believe were infringed upon.

I happen to agree with them in this particular case.

Comment edited 58 seconds after posting
0 upvotes
Bill Glass
By Bill Glass (Jan 25, 2012)

I am in trouble. In 2009 I took the SAME photo.
Albeit the BUS is a different model or manufacturer and slightly more prominent.

0 upvotes
harrygilbert
By harrygilbert (Jan 25, 2012)

If this ruling becomes a precedent, no photographer can be inspired by another photographer's work and do anything similar, or apply the same techniques. No more use of ND grads, for example. And the old novel formula of "boy meets girl, boy loses girl, boy gets girl" would be considered copyright infringement. Bad law by a busybody judge.

Comment edited 40 seconds after posting
0 upvotes
ExNewt
By ExNewt (Jan 26, 2012)

There's iPhone and Android Apps that let you shoot in B&W and keep one color; so this shot has already been inadvertently "infringed upon" maybe 123,000 times...

0 upvotes
vegwolff
By vegwolff (Jan 25, 2012)

I have an idea for a competition. No prizes though. How many of you can take a similar shot, using similar techniques? I'm sure the court system would love to be clogged up with similar lawsuites being filed. Everything just seems so similar these days. On a similar note, I'm surprised that Lieca hasn't filed a similar (copyright) law suite against Fuji, (M9 V's X-Pro 1.) A black camera, with interchangeable lens', a viewfinder, image sensor, shutter speed dial, aperture ring. Mind you, apart from the image sensor and interchangeable lens', that is a similar description of many similar film range-finder cameras from yesteryear. Anyone got any similar ideas? If so, then sorry, you can't publish them here, those ideas are now copyright on my behalf.

Comment edited 1 minute after posting
5 upvotes
Ashley Pomeroy
By Ashley Pomeroy (Jan 25, 2012)

I can prove that I used the phrase "on my behalf" in 2005, seven years ago - I'm afraid I'm going to have to sue you.

4 upvotes
RHWeiner
By RHWeiner (Jan 25, 2012)

I predate your usage of "on my behalf" by 10 years so both of you can expect to see legal papers delivered to you!

3 upvotes
vegwolff
By vegwolff (Jan 25, 2012)

:-) Very good.

0 upvotes
srimano
By srimano (Jan 26, 2012)

I'll sue you guys for thinking (using ur brain).. sorry, u just did it again.

0 upvotes
Diderot2
By Diderot2 (Jan 25, 2012)

Could someone now copyright a headshot with, say, Rembrandt lighting?

Believe me, I support copyright protection for artwork, but there are so many trillions of photographs in the world at this point that I really doubt the judgement of this judge in this case. The second photograph does look very derivative, but lets face it, artists "steal" from other artists all the time. And whether we like it or not, this is different enough that it is, well... different.

Contrast is one of the basic elements of art. Books have been written on just that single element, alone. In that sense, the first photograph was "stolen." And I agree that this could be a golden bonanza for lawyers.

I hope there are not any "unintended consequences" from this decision.

Diderot

0 upvotes
Diderot2
By Diderot2 (Jan 25, 2012)

No more kitty kat photos?
Diderot

0 upvotes
oscarvdvelde
By oscarvdvelde (Jan 25, 2012)

Hmmm...
20. " Photographs ... can have the character of an artistic work in terms of copyright law if the task of taking the photograph leaves ample room for an individual arrangement. What is decisive are the arrangements (motif, visual angle, illumination, etc.) selected by the photographer himself or herself."

Obviously Houghton did, because he found a perspective much more prominently featuring the bus and the backdrop, while leaving out the bridge.

Houghton showed in his defense pictures from others similar to Fielder's, showing it wasn't a very original point of view at all.
Astonishingly the judge said Fielder has created an original work because he didn't know of any other similar pictures taken before him. Since Houghton knew those pictures before taking his photo, this made his attempt a copy!

SO BEWARE: Never let yourself be inspired by other's pictures if you intend to publish your photos of roughly the same scene. Throw away the evidence if you were.

1 upvote
diy
By diy (Jan 25, 2012)

Another problem is that the defense did a lowsy job, but then it goes back to the money issue. If I can hire a really good artist to argue that my picture have a lot of original ideas in it, or if you can hire an even better artist to argue my ideas are actually remotely related to yours, then ...

0 upvotes
Vlad S
By Vlad S (Jan 25, 2012)

Why do you guys all ignore the finding (that was not disputed by the defendant) that The defendant *fashioned* the image specifically based on Fielder's version, specifically to avoid paying the licensing fees. I think this is not so much about the freedom of expression as about a cheat being caught.

From the ruling:
"The whole point of this case is that Mr Houghton and his company wish lawfully to produce an image which does bear some resemblance to the claimant's work. The inference that I draw is that Mr Houghton sought out this other material after he had decided to produce an image similar to the claimant's. ... That does not avoid a causal link. If Mr Houghton had seen Mr Fielder's image, decided he wanted to use a similar one, found the Rodriguez or Getty photographs and put one of those on his boxes of tea, there would be no question of infringement. ... But that is not what happened."

0 upvotes
sobos_ru
By sobos_ru (Jan 25, 2012)

Что-то я не понял, Вы за судебное решение?

0 upvotes
Vlad S
By Vlad S (Jan 25, 2012)

Да, я считаю что Хафтон своровал творческое решение именно у Филдера с целью получения прибыли, а не случайно воспроизвел популярный вид. На это указывает предыдущая договернность Хафтона и Филдера о лицензировании, и Хафтон пытался избежать этой договоренности, сделав свой собственный снимок.

Comment edited 32 seconds after posting
0 upvotes
swhs
By swhs (Jan 25, 2012)

No, reverse engineering is also legal. So making something that looks like something else is not illegal, nor a violation of copyright.

As I said before, the only way this should have been judged is on trademark issues, copyright most definitely was not violated. The scene is fairly simple, and using one colour with a gray background is fairly old hat as well, removing the sky is another simplification going back to artists drawings for advertisements. So this is a fairly simple subject, and the 'idea' or 'concept' of the work shouldn't even come into it.

0 upvotes
Vlad S
By Vlad S (Jan 25, 2012)

You guys always seem to omit one or the other aspect of the ruling. It's not JUST selective coloring. It's not JUST the sky. It's not JUST the bus and the Big Ben. It's all of those things TOGETHER, PLUS the circumstance that Houghton already tried to steal this image outright and was forced to pay the license fees, PLUS Houghton's admission that he was not aware of the similar images before he used Fielder's. That's just too many "coincidences" to say that he did not try to reproduce Fielder's work knowingly and in substantial part.

0 upvotes
diy
By diy (Jan 25, 2012)

What I want to argue is that those things are "TOGETHER" is not because of the first photographer's creation, it is how the buildings are laid out there.

0 upvotes
Vlad S
By Vlad S (Jan 26, 2012)

@diy: this argument was considered by the judge, and rejected based on the images submitted by the defendant himself.

0 upvotes
swhs
By swhs (Jan 26, 2012)

> You guys always seem to omit one or the other aspect of the ruling.

No.
But you seem to 'forget' that I said that reverse engineering is legal.

> PLUS the circumstance that Houghton already tried to steal this image outright and was forced to pay the license fees, PLUS Houghton's admission that he was not aware of the similar images before he used Fielder's. That's just too many "coincidences" to say that he did not try to reproduce Fielder's work knowingly and in substantial part.

What he did to circumvent paying a licence fee or what he did in the past is IRRELEVANT!

The issue is about having a copyright on an idea. Which is wrong.

0 upvotes
Wilhelm
By Wilhelm (Jan 25, 2012)

That's totally ridiculous!

2 upvotes
RBFresno
By RBFresno (Jan 25, 2012)

Question: What's a Criminal Lawyer?
Answer: Redundant.

0 upvotes
RBFresno
By RBFresno (Jan 25, 2012)

I found more criminals!:
http://hydeparktowershotel.com/see-london.html
http://mellieness.blogspot.com/2010/09/london.html
http://www.allposters.co.uk/-sp/London-Big-Ben-Bus-Posters_i7940003_.htm
http://www.planetware.com/picture/london-eng-gb141.htm
http://www.shutterstock.com/pic-35422549/stock-photo-london-aug-london-bus-on-westminister-bridge-with-big-ben-aug-th-big-ben-is-the.html

0 upvotes
diy
By diy (Jan 25, 2012)

I still think these are too vague:
"Although the images undoubtedly differ in their composition, elements of the overall composition of the claimant's image have been reproduced. The bus is a Routemaster, driving from right to left with Big Ben on the right of the bus. The riverside facade of the Houses of Parliament is part of the image. The bus is on Westminster Bridge (albeit in a different place) in both images. This is obvious in the claimant's image and can be seen from the presence of the balustrade on the left in the defendants' image. There are some people visible but they are small (and in different places). There is no other obvious traffic. The edge of Portcullis house is visible on the right. Running from top to bottom, there is a substantial amount of sky in the picture (albeit more in the claimant's) and the top of the bus is roughly the same height as the facade of the Houses of Parliament.
"

0 upvotes
diy
By diy (Jan 25, 2012)

and these
"In terms of visual contrast features:

i) The element of bright red bus against a black and white background has been reproduced.
ii) The element of the blank white sky, which creates a strong sky line, has been reproduced. A small point arose that the image produced by Sphere actually has no sky at all, so that it takes on the background of the box it is placed on. Nothing turns on that since in use it is placed on a white (or very pale grey) tin. "

0 upvotes
rgibbons
By rgibbons (Jan 25, 2012)

I don't think the white sky should be considered. I have several pictures of that area, on a cloudy overcast day, and the sky appears white in the pictures; ( I need to use HDR to bring out clouds on such days while maintaining detail in the shadows). Nor do I think a red double Decker bus with the clock tower and parliament are original, as a tourist from the US, these 3 elements are things I tried to capture when I was in London, and tried to get all 3 together (without knowledge of previous pictures doing this); because they are famous tourist sights individually. The only thing that seems copied is leaving the main object in the front in color, and making the rest of the image in B&W, Which I've seen in hundreds of other photos. If the 2nd photo copies the elements and technique, So does the "original" photo copy elements and techniques of previous "art".

0 upvotes
diy
By diy (Jan 25, 2012)

I finally read the legal document. Points after 55 are most relavent. 68--explaining what judge consider as infringing---is particularly interesting:

"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. ... 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. "

2 upvotes
citizenlouie
By citizenlouie (Jan 25, 2012)

The judge basically is saying the defendant must not take the photo himself, because he does not possess the legal knowledge of a professional photographer. I thought this only applies to photos of people where you MUST let the model sign the model release form or the photographer could be sued. But who can sign for Big Ben and the Routemaster bus?

So basically, if you are small souvenir shop owner, or sell T-shirt with famous landmark over the Internet, be sure to hand the royalty to big corporations..., which of course, is anti-competitive. Either that, hire a professional photographer or a league of lawyers and let everything due process of laws. I can see who benefit the most from this ruling....

Anybody has stats on how much plaintiff got, and how much the lawyers got from this ruling? I have a feeling the latter made more than the plaintiff....

0 upvotes
citizenlouie
By citizenlouie (Jan 25, 2012)

One more thing. I think the critical thing that led defendant to lose the case is:

He did NOT record the creation date of his photo nor register his photos so there can be some copyright record that could protect him. It's not who is right or wrong, but who knows more about legal process....

Basically it's all LEGAL process. So all you photographers play safe and record all the dates and be sure make declaration of copyright to all your photos. Law is not used to protect people but used against people.... How nice.

Comment edited 2 times, last edit 4 minutes after posting
0 upvotes
Henry M. Hertz
By Henry M. Hertz (Jan 25, 2012)

why is there more then one company that produces TV´s or computers?

the guy used an image without paying.. ok that´s against the law.

then he goes out and creates a similiar picture instead of buying the original.
that´s absolutely fine for me.

it sounds familiar to me when i look at companys who produce printers, TFT monitors, cars, memory sticks... you name it.

Comment edited 2 times, last edit 2 minutes after posting
2 upvotes
gordon lafleur
By gordon lafleur (Jan 25, 2012)

completely idiotic

5 upvotes
rfsIII
By rfsIII (Jan 25, 2012)

The effect of this judgement is to protect YOU the photographer from someone taking one of your ideas, copying it, and selling it at a lower price to a client.

How is that a bad thing?

1 upvote
Henry M. Hertz
By Henry M. Hertz (Jan 25, 2012)

ROTFL......

well i have the idea of flower pictures .. i guess it´s ok for you to stop taking pictures of flowers. instead you can buy my images if you need one!!

oh and by the way .. don´t take pictures of dogs hunting or playing with a ball. the rights for these kind of images holds my sister!!

Comment edited 3 times, last edit 5 minutes after posting
7 upvotes
citizenlouie
By citizenlouie (Jan 25, 2012)

@rfsIII

Yes, it's to protect the intellectual property, and I can understand that. After all I wouldn't want people to copy my work and cheapen it like some knock-off purse.

On the other hand, the specific case is quite ridiculous. Here are some of my thoughts (condensed):

1) It's a case about money, not originality. Neither photo will win on originality, whether we judge them based on the composition or technique.
2) Neither photos are to be called photos in strictest sense, but illustrations, because of extensive manipulation. So assessment used on judging an illustration is very different from a straight-photo.
3) I agree with another poster, both photos are tacky and unoriginal. Neither photographers have talent. The original photo's perspective is badly done. Bus is painted red, but small presence in the scene is self-contradictory. "Copycat" version is a much improvement on that bit, but done with lack of skill (and bad gears). Pot calling kettle black....

0 upvotes
oscarvdvelde
By oscarvdvelde (Jan 25, 2012)

The 'original' has been mentioned to be inspired by the technique used in Schindler's List (small red person in b/w surroundings) ...and apparently legal because it's a different subject.

Comment edited 2 minutes after posting
0 upvotes
zeidgeist
By zeidgeist (Jan 25, 2012)

The problem that we have in the UK is that most of our judges are idiots, that we have rather too many lawyers prepared to take on stupid and dangerous cases and of course the litigious chancers who will do anything for a fast buck and scumbags who will run roughshod over all and sundry. Welcome to "New" Britain.

3 upvotes
xeriwthe
By xeriwthe (Jan 25, 2012)

sounds not too different from the olde US of A

2 upvotes
citizenlouie
By citizenlouie (Jan 25, 2012)

Plaintiff's sole witness was himself, and defendant's witness was his associate.... This case should be thrown out in the first place.

Bottom line. If you can hire the best lawyer to tell the world what originality means (and I have the impression neither the judge nor the lawyers understand photography), then you could be the next greatest photographer....

1 upvote
upsetter
By upsetter (Jan 25, 2012)

Strange that the only reference to Justin Fielder from Google is this one.
I would have thought something so absolutely wrong and important would have been reported somewhere in the UK press?????????

0 upvotes
Richard Butler
By Richard Butler (Jan 25, 2012)

The case was brought under the name of Mr Fielder's company: Temple Island Collections. You may have more luck with that as your search term (We wrote about the individuals, since they were the photographers and companies can't take photographs).

0 upvotes
upsetter
By upsetter (Jan 25, 2012)

Ah, yes. Thx

0 upvotes
Richard Butler
By Richard Butler (Jan 25, 2012)

This blog post is well worth a read if you're interested:

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

1 upvote
citizenlouie
By citizenlouie (Jan 25, 2012)

Thanks R Butler for the link, which arrange the case points in much more meaningful manner.

The original precedent case this current case relied on is so much different. In original case, Gallagher actually manipulated the scene, so the scene IS original. This current case, red double-decker running in front of Big Ben and Parliament is NOT artificially created purely for the purpose of the artist's unique vision. Don't know why the judge could use it to rule in plaintiff's favor....

If standing in that common tourist spot for a long time makes it an original..., then I have plenty of photos that I can sue people for. And people who sell calenders featuring Tunnel View which Ansel Adams first popularized it would be sued under the same ruling.

0 upvotes
Shelly Glaser
By Shelly Glaser (Jan 25, 2012)

If one of these two photographs is a copyright infrequent of the other, all pictures taken at the same tourist spots are illegal - obviously, someone must have photograph the place before. In this case, neither photographer has built the parliament house or the Big Ben, nor was the red double deck bus constructed or even brought to the place by the photographer - this is a standard London bus at its standard hourly route.

American courts seem to have come to a complete absurd with this decision. Making it illegal to use a photograph of a public tourist spot in the name of protecting intellectual "property" is a clear infringement of the first amendment.

1 upvote
tlinn
By tlinn (Jan 25, 2012)

American courts? I got the impression that this was a UK court.

0 upvotes
Vlad S
By Vlad S (Jan 25, 2012)

You'd be correct, except:
1. simply taking a photograph of a bus at that spot was not ruled illegal. There were several intentional and artificial manipulations, that taken together with the subject, the composition, and the intent were ruled to be infringing on the Fielder's shot.
2. The ruling was made by a British court, not American
3. The First Amendment to the US Constitution does not apply outside of the USA.

0 upvotes
DUMB4SS
By DUMB4SS (Jan 25, 2012)

UK not US courts.

0 upvotes
GrahamGalaxy
By GrahamGalaxy (Jan 25, 2012)

99% of all photograhy is not original but inspired by what you see in orher photographers work. I soak up other images, think about them, (make them better) and then produce a image.

2 upvotes
citizenlouie
By citizenlouie (Jan 25, 2012)

When I was studying film (cinematography), the instructor mentioned very clearly that all the stories can be told are already been told. It's not about the story, but how one tells the story.

Same here. I see clearly the execution and techniques used are different (besides the superficial red bus on b&w background) so I am not sure where the violation comes in. This is an anti-creative ruling. If this goes slippery slope, then there can only be one Half Dome photo (Ansel Adam's), and one jumping over the puddle photo in the world (Cartier-Bresson's). This is communism in art where every scene is a commodity, have a fixed utilitarian value with absolutely no tolerance for variation.

Besides, the plaintiff himself said he copied the style from Schindler's List....

0 upvotes
Roland Karlsson
By Roland Karlsson (Jan 25, 2012)

Communism? Hmmmm ... communism and Copyright does not mix at all well. You cant own the right to a photo in a communistic country. You have to think of some other ism? Capitalism maybe?

0 upvotes
citizenlouie
By citizenlouie (Jan 25, 2012)

Yes, if you want to put it that way, then it's not communism in that sense, but I used the analogy in a very limited scope. This is not an argument about C vs C (both systems have their own merit), but please take my analogy in the very specific scope I was using.... Capitalism allows choice is all I am trying to say. But yes, you could say it's the capitalism that encourages such stupid case to begin with because of the greed. And being stupid is also a choice, btw. Both C's have no intrinsic value we stereotype them for, which people later apply it to. I knew I shouldn't have used political terms in my argument.... Too easy to stir people's emotional response....

Comment edited 5 minutes after posting
0 upvotes
Vlad S
By Vlad S (Jan 25, 2012)

@citizenlouie: I do not have any animosity to your political arguments, but I feel that there are some misconceptions that need to be cleared up.

Strictly speaking, communism also allows choice. It never became available, because socialist countries never produced enough goods to supply everyone with desired amounts. But uniformity (or lack of choice) was an outcome of the desire to supply the largest amounts of goods at the lowest cost, rather than an ideological requirement. The ultimate goal of communism was "from each according to their ability, to each according to their needs" with unlimited choice.

On the other hand, capitalism is capable of offering choice because some strata of the population are priced out. The less wealthy you are, the less choice you have. At the bottom people have no choice but to accept whatever the homeless shelter gives out. So choice is not something that every single member of the capitalist society has access to.

Comment edited 4 minutes after posting
0 upvotes
citizenlouie
By citizenlouie (Jan 26, 2012)

No animosity nor I feel it's personal. I think it's good form we don't talk about our own view on the subject matter because it has nothing to do with the British Ruling on originality. If you read my original response to you, you'd realize my view on the two economic platform isn't too far from yours, though yours appears to be slightly more left leaning and mine more right leaning, but I am not patronizing either platform and/or see either of them as perfect. That would only exist in purely ideological world where people are all logical and will not bend rules. If that's the case we neither need regulation nor government.

Oh, I forgot about choice. Communism, IIRC, predetermines what is "best" for the people and most economical. Indigo was the color of communism because that's the cheapest dye for clothes. Do you want to wear indigo colored cloth all the time? OTOH, many consumer behaviors prove people often do choose for inferior products even if given choice.

Comment edited 2 times, last edit 8 minutes after posting
0 upvotes
Carl Sanders
By Carl Sanders (Jan 25, 2012)

On another note there is a shot of a Black OM4 Olympus camera on a white background in this review section. Does this mean that if we shoot a black Olympus camera on a white background we have to pay someone who has done this before, for example Olympus? We were going to do some test shots of oven bake crisps, again on a white background, piled on top of each other. This shot has been done before does this mean that we can not shoot it?
We are a still Life photographers it is unlikely that someone somewhere has not shot something on a white back ground before so, according to this we have avoid shooting items on white backgrounds. There are endless shots of clean fresh vegetables on wooden backgrounds, are we stuffed on that one as well?

3 upvotes
filmluvr
By filmluvr (Jan 25, 2012)

"a shot of a Black OM4 Olympus camera on a white background"

Does that qualify as "intellectual creation"?

0 upvotes
citizenlouie
By citizenlouie (Jan 25, 2012)

Are any of those red bus in front of Big Ben photos "intellectual creation?"

0 upvotes
Roland Karlsson
By Roland Karlsson (Jan 25, 2012)

Intellectual creations? Has that anything to do with Copyright of images?

0 upvotes
Total comments: 738
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