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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
4567
Zvonimir Tosic
By Zvonimir Tosic (Jan 25, 2012)

What is today considered a ruthless breach in copyright, several centuries ago it was a mean to advance in art. Raphael 'stole' from Michelangelo, and they 'stole' from Leonardo, and all of them stole from Quattrocento painters, etc. What judge has missed out is that 'patent principle' MUST NOT work in case of visual art expression — including photography — because all art progress is then stopped abruptly by a loud crying brat.
"Bad artists copy, but good artists steal", Picasso said once. And judge wants not to stop copying, but prosecute stealing of an idea, or the principle behind the execution. This is so wrong, because it affects photography tremendously, and lowers its status to a mere commodity, not an art expression.

Comment edited 1 minute after posting
1 upvote
Vladilena
By Vladilena (Jan 25, 2012)

This is outrageous! Basically the judge is saying that the whole location and a red bus is copyrighted by a single person. If I was to take a picture in that location and isolate the red bus, does that mean I'm copying Justin's work? What if I took the picture in color? What if I isolate the yellow instead? What if there is no bus? Would I still be infringing copyrights?

Interesting to see how the case would turn out. Really.

3 upvotes
bronxbombers
By bronxbombers (Jan 25, 2012)

silly

4 upvotes
jeangenie
By jeangenie (Jan 25, 2012)

I think the 'lighting' to which he is referring is the blank sky. However, the unnamed Magistrate (I didn't read the full article) can be excused for this, as unless he is a photographer himself he probably wouldn't know that your average snapshot of a city on a bright, overcast day will yield a blank sky.

Again, not reading the full article, I can only assme that context played a large part here. There is a MASSIVE difference between someone taking a photo similar to an existing one for their own use, and a company contacting an artist to license their work, being unable to reach an agreement, and hring someone else to copy that work.

In the US, Tom Waits set a precedent for this by successfully suing Frito-Lay when they hired someone to write a song that sounded like 'Step Right Up' after he told them they couldn't use his song.

1 upvote
jeangenie
By jeangenie (Jan 25, 2012)

Also, US patent law has a clause for "obvious" choices. When a solution is obvious, or there is only one possible solution, that cannot be patented/trademarked/etc. In the US (again, assuming the copyright infringement wasn't intentional), a court would likely rule that since Big Ben and the red double-decker bus are such strong identifiers of London, since the sky is often going to be white, and since the 'single colour on an important subject' effect is so often done, that this photo is probably too obvious to copyright.

In that case, it would probably only be illegal if the prosecution could show that the defendant willingly copied the photo for personal gain, since the 'obviousness' of the image means that anybody could have made it.

0 upvotes
powertoold
By powertoold (Jan 25, 2012)

This judge is an idiot. These two pictures aren't even CLOSE to being the same. What "lighting" is the judge talking about? This is a "Photoshopped" picture, the technique of which is commonly used. It's perfectly logical to isolate the red bus, which is probably different in color than the surroundings. I am outraged that this is considered "copying."

5 upvotes
mlmusto
By mlmusto (Jan 25, 2012)

p.s. the patent county courts are a lowbudget approach to IP litigation with a single judge - appeal lies to the High Court.

the decision is notable for the lack of defense raised/evidence offered on what any member of these forums could easily identify as distinguishing marks of originality.

in the colonies (US) decisions of the trial court lack precedential value; let's hope this applies to the patent county courts.

1 upvote
Lofi
By Lofi (Jan 25, 2012)

So basically if SOPA were active, I could shut down facebook by simply searching for such kind of picture, which I'm sure exists there.

3 upvotes
sobos_ru
By sobos_ru (Jan 25, 2012)

I'd love to have this Justin's e-mail to tell him my total personal contempt.

This sort of behaviour should be condemned by the community.

Comment edited 2 times, last edit 3 minutes after posting
0 upvotes
powertoold
By powertoold (Jan 25, 2012)

What? There's no copying here. These are two different images. Say you took a picture of a yellow jacket on a rose and then isolated the color of yellow jacket. The two subjects are "unique," so if someone does the same thing, they're infringing on copyrights? No way.

3 upvotes
rocklobster
By rocklobster (Jan 25, 2012)

Reminds me of another rediculous copyright suit, that of the music group 'Men At Work' (song 'Land Down Under') being sued for a short sequence of flute notes mimicking "The Kookaburra sits in the old gum tree" - a children's song written in 1934. The owners of the song Larrakin Music wanted 40 - 60 percent of the royalties but the court ruled just 5% payout. I say they should have got nothing. The company that bought the rights to the song - many years after "Down Under" became a hit - just saw dollar signs and cashed in.

0 upvotes
mlmusto
By mlmusto (Jan 25, 2012)

now back to more important things.

like the D4 vs. D3s vs. D3x vs. D700 vs. D800 vs. D400

and working through the steps to manage my grieving (the 9'ers loss).

1 upvote
NowHearThis
By NowHearThis (Jan 25, 2012)

Unless it's the actual photo from Justin Fielder being "reproduced", without his permission, there shouldn't be a copyright issue. Period. A company should be able to take or buy a similar photo and use it as they want.

1 upvote
avobob
By avobob (Jan 25, 2012)

Before we all get too indignant about this judgement, perhaps we should read it in its entirety first.

The judge seems to treat copyright as a form of patent law (I am not a lawyer so I don't know if this is usual) and so dismisses the idea that only a facsimile infringes copyright. Instead he says that an infringement can consist in copying a number of significant features or aspects, including - important for us all - composition and work done with Photoshop. He also makes the point that "The image may look like just another photograph in that location but its appearance derives from more than that."

Worth reading and noting the points of this judgement because the judge worked his way painstakingly through the issue and whether or not it holds up under appeal, it could become precedent in many countries.

1 upvote
raincoat
By raincoat (Jan 25, 2012)

unfortunately, I don't find the composition to be remotely similar.

in the bottom the subject is clearly the bus, while in the top the subject is clearly the greater landscape, with the bus as a minor object of interest.

ie "I was in London and saw a bus" vs "I saw this bus in London"

since UK 90% of the year the sky is cloudy like that, I don't see any 'copying' on that point either. In fact there are millions of pics showing the sky in various ways and I find it hard to believe any viewing angle can be copyrighted.

It appears that simply selective coloring of a bus is now the exclusive domain of Justin Fielder in the UK now.

3 upvotes
mlmusto
By mlmusto (Jan 25, 2012)

http://topics.nytimes.com/topics/reference/timestopics/people/p/richard_prince/index.html

what american courts are dealing with at this very moment.

note, Brit law does not have "fair use" apparently.

Comment edited 16 seconds after posting
0 upvotes
yukonchris
By yukonchris (Jan 25, 2012)

I think the real issue here is probably the history that exists between the two photographers. If not for that, it would be hard to imagine a problem. Let's see, two photographs taken in one of the most photographed cities of the world, both of which happen to represent two of the most obvious icons of that city, what are the odds? The fact that both rely on one of the most overused processes known to contemporary photography - selective colour - with the red thing selected, also fails to resemble a smoking gun. As for the grey sky, perhaps it would be better to call on a meteorologist to provide expert testimony.

4 upvotes
mlmusto
By mlmusto (Jan 25, 2012)

i'm a lawyer and this will get reversed (though no expert in UK law). Clearly, the judge is not a photographer - or if s/he is, doesn't know anything about digital photography or post-processing. the bus is not unique and the buildings are public domain, and one could argue from the diff in perspective (foreground bus the focus in the second work; background/context the focus in the earlier work) that the symbolism/symbolic meaning is also materially different.

and i now have respect for the unconstitutional Montana (or was it North Dakota) law that pronounced can't rely on foreign law - Austrian law, OMG!

the anglo-american common law system nears all-time low.

2 upvotes
Lofi
By Lofi (Jan 25, 2012)

So must every owner of a Sony Nex-5N in the UK now disable the picture effect where only red colours are displayed and the rest is black & white? Because that's a standard in the camera, there's no art behind it. Also, both pictures are awful. They should both have to pay a fine for wasting the court's time.

5 upvotes
exifnotfound
By exifnotfound (Jan 25, 2012)

So what, now I'm going to be sued at some point down the track because I took a photo of the Opera House and some other b@stard did before hand - ridiculous.
Selective colour is now built into cameras as an effect. Next people will be sued for selecting red.

Comment edited 2 minutes after posting
3 upvotes
WT21
By WT21 (Jan 25, 2012)

This is stupid. Does this mean photographers should just move to copyright their entire LR library, because you never know when they might be needed?

2 upvotes
anolphart
By anolphart (Jan 25, 2012)

I thought copyright provides a legal right to the ORIGINATOR. If multiple photographers capture a moment in time in their own cameras, then surely they must each be the originator of their own image. If they choose to modify their image using a style that has no licence then how is it possible to infringe on copyright?

If what the judge ruled is correct, then it would stand to reason that if I took a photo using a graduated ND filter of the city skyline then no-one else is allowed to do the same because they would infringe on my copyright.

6 upvotes
Pentax_Prime
By Pentax_Prime (Jan 25, 2012)

Anyone else find the very idea that this case went to court more baffling than the meaningless ruling/outcome? Two awful images of overdone cliche; they look like a Lightroom preset ...

4 upvotes
jcuknz
By jcuknz (Jan 25, 2012)

The law is an ass ... as it keeps on demonstrating to us normal people.
Nick Houghtons is the better photograph in the use of the technique.

1 upvote
Eric de Rouge
By Eric de Rouge (Jan 25, 2012)

The concept is exactly the same in both images: red bus on black bkground at exactly the same location with same directional dynamics, same perspective lines, bus even moving in the same direction, same blow out sky etc..
If the article hadn't mentionned both photos were from 2 different photographers, one could think it came from the same person. That's good enough for plagiat. But having said that, the lawsuit itself is ridiculous. Fashion and arts are 2 domains where creators tend to copy each other. I wouldn't even be surprised if the guy who created first the photo, had that idea from somewhere else and tweaked it. The second guy was either bold and audacious, or stupid...

1 upvote
anolphart
By anolphart (Jan 25, 2012)

I find it interesting that the judge doesn't have a problem with Justin Fielder copying the style used in Schindler's List, and yet condemns Nick Houghton for it.

1 upvote
GaryJP
By GaryJP (Jan 25, 2012)

It predates "Schindler's List" by a long time. Reminds me. I should sue Spielberg.

2 upvotes
idbar
By idbar (Jan 25, 2012)

Sigh. This copyright madness!

Where do you draw the line? Quick! Go take pictures on landmarks and change the saturation of the background while keeping the foreground in full color...

Very likely you'll be sued by this guy! Clever use of Photoshop.

1 upvote
Sosua
By Sosua (Jan 25, 2012)

I think Justin Fielder may be in for a number of copyright breaches himself given he has chosen to dig a hole for himself:

Google: london red bus black white

I'm sure there will be one which was taken before his!

6 upvotes
NowHearThis
By NowHearThis (Jan 25, 2012)

I counted 6 images that included a red bus, and Big Ben in the background, just on the first few rows of images that pulled up. I hope someone sues Justin Fielder after which I hope a higher court pulls it head out of its a$$ and reverses the decision by Judge Birss.

2 upvotes
John Bean (UK)
By John Bean (UK) (Jan 25, 2012)

"I hope a higher court pulls it head out of its a$$ and reverses the decision by Judge Birss."

Ignorance is Bliss ;-)

0 upvotes
HiRez
By HiRez (Jan 25, 2012)

That is completely ridiculous.

1 upvote
Sosua
By Sosua (Jan 25, 2012)

This is ridiculous - every second chap has probably tried something similar in London.

They are both poor images as well, in terms or creative and technical execution.

2 upvotes
Antonio de Curtis
By Antonio de Curtis (Jan 25, 2012)

in the 2nd statement you got the point

0 upvotes
eyrieowl
By eyrieowl (Jan 25, 2012)

I guess that means taking black-and-whites at Yosemite is out of the question then...?

Extending copyright for photographs to similar work, or even naked imitation, seems open to simply overwhelming abuse. How many photos, for example, imitate The Seven Year Itch? Or Ansel Adams (as I alluded to)? Or Eisenstaedt's image in Times Square? Or...you name it, people have created imitations of famous photos, famous photographers styles. Hopefully it does get appealed and something less overreaching put in place.

1 upvote
tinternaut
By tinternaut (Jan 25, 2012)

This is just silly. The defendant's image is clearly a different scene, with a different field of view, taken from a different place . Since the judge was clearly hell bent on opening the gates of hell, I hope the courts drown in cases like this. Even if the offending image was inspired by the original, I don't see the case for breach of copyright here.

That said, I wouldn't want to see either image hanging on my wall........

1 upvote
JeanPierre Martel
By JeanPierre Martel (Jan 25, 2012)

This is simply a bad judgement. It will be reversed by any appeal court.

0 upvotes
tr4driver
By tr4driver (Jan 25, 2012)

As Paul Simon once said, "everything looks worse in black and white."

1 upvote
ELLIOT P STERN
By ELLIOT P STERN (Jan 25, 2012)

not the point folks. It does not matter what the photographer does to what we are all accepting as poor images. There are probably 10000 phone images taken every day. The point here is that the judge is looped.

It is incrediblel BS that a decision like that could be made in the first place. I am in the business and have no problem with copyright laws but this is about the dumbest interpretation I have ever heard.

Fire the judge.

4 upvotes
GaryJP
By GaryJP (Jan 25, 2012)

English judges tend not to get out much. I suspect he has not seen all the postcards on sale in London for years with the same visual cliche.

4 upvotes
Nic Walmsley
By Nic Walmsley (Jan 25, 2012)

I think that sums it up. How can you have copyright over a cliche?

6 upvotes
RKGoth
By RKGoth (Jan 25, 2012)

Liking this whole thread. In fact...

I'm lovin' it.

http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=78257203

Comment edited 12 seconds after posting
0 upvotes
CharlesGoodwin
By CharlesGoodwin (Jan 25, 2012)

Its a trial court decision, wait for the appeal. Doubt this will hold up.

0 upvotes
onlooker
By onlooker (Jan 25, 2012)

This effect is so overused, and the photos so weak (although the bottom one is better IMO), that I would be surprised if there weren't 100 different ones by different photographers floating around.

0 upvotes
cruzrider
By cruzrider (Jan 25, 2012)

Bizarre interpretation of copyright law, the second image doesn't even feature the bridge. Usually cases like this are settled by seeing if an average person would mistake the two.

Comment edited 3 minutes after posting
0 upvotes
alexisgreat
By alexisgreat (Jan 25, 2012)

We have enough copyright BS going on the States, it's tempting me to start free distributing music and movies (which I care nothing about) because the only ones making money off them are the large corporations, who already have too much money as it is.

2 upvotes
jimby_99
By jimby_99 (Jan 25, 2012)

Alexis,

Why don't you freely distribute your OWN work instead of somebody else's? Or is it that your own work is not nearly as valuable?

The infantile rationalization that you can infringe copyright because you don't approve of the law or other people making money off of the fruit of their labors has got to be one of the most puerile arguments on the 'net, not to mention so cliched that it's hard not to think of you as some disgruntled Slash-dotter nattering in his parents' basement.

2 upvotes
Aero Windwalker
By Aero Windwalker (Jan 25, 2012)

It's funny how both images are so lame and they would fight for the copyright...

11 upvotes
mr moonlight
By mr moonlight (Jan 25, 2012)

I was thinking the same thing.

I did a shoot recently with a hot girl wearing a bikini walking down the beach.

I also did a shot of the hotels on Miami Beach's Ocean Drive at night. It was a long exposure with rooster tails from the cars driving by.

Oh, and just yesterday....

0 upvotes
cplunk
By cplunk (Jan 25, 2012)

like them or not, apparently someone is willing to pay money for them. So, off to court they go.

Maybe there lawyers have posters of them in their offices now?

1 upvote
jm67
By jm67 (Jan 25, 2012)

This has got to be one of the most over done "effects" and can't wait till the fad has passed. I always cringe when a bride asks me to make her bouquet colour while the rest is B&W. So you can gather what I think about these both, along with other posters. Shame is they'd probably look better in moody, contrasty colour alone. Anyway, it's a pretty bizarre case and I guess I wouldn't make a good judge as if he had any photographic sense at all, he'd probably realize that there are any number of tourists doing this same shot on a daily basis and there really isn't much to copyright other than the original image and only the original. Really? I can't take a picture of Niagara Falls now cause someone else has done so and it contains similar elements and has similar "effects"? What a world.

0 upvotes
GaryJP
By GaryJP (Jan 25, 2012)

On the other hand, when a very similar image is also seen on a London postcard or two, I wonder if the judge had all the information.

http://post-card-diary.blogspot.com/2011/01/party-bus.html

http://www.amazon.co.uk/London-Red-Bus-Postcard-10cm/dp/B0044131H0

There's even one of red buses against a monochrome Piccadilly Circus. It's so common it's a cliche.

Comment edited 11 minutes after posting
2 upvotes
ELLIOT P STERN
By ELLIOT P STERN (Jan 25, 2012)

I would say the judge was paid off or high or loaded.

1 upvote
jcuknz
By jcuknz (Jan 25, 2012)

Judges base their judgements on what is presented in courst Nick needs to get a better lawyer becuase obviously all everybodies knowledge expounded here did not get presented in court.

0 upvotes
FriendlyWalkabout
By FriendlyWalkabout (Jan 25, 2012)

Would you have blown your money to fight this or would you walked in without representation expecting the judge to demonstrate a little common sense?

0 upvotes
cplunk
By cplunk (Jan 25, 2012)

While my understanding of English courts in limited, I believe that all any money spent fighting this would have been repaid by the folks bringing the suit if the defense was successful.

I've read that in some cases, the courts will go so far as to require you to post a bond in order file a suit, so that there is a guarantee that if you loose there defense is compensated by you.

0 upvotes
Jogger
By Jogger (Jan 25, 2012)

theyre both terrible photos, i wouldnt pay for them

1 upvote
Color Blotch
By Color Blotch (Jan 25, 2012)

Right, but now thanks to the court decision you know exactly who you're not paying to.

0 upvotes
Deleted1929
By Deleted1929 (Jan 25, 2012)

So much for imitation being the finest form of flattery. :-)

That they're both such incredibly uninteresting images is what amazes me.

As usual we can assume the lawyers won and everyone else lost.

0 upvotes
GaryJP
By GaryJP (Jan 25, 2012)

Interesting case.

To me the idea of making the rest of the image monochrome but the London bus red is kind of obvious, even banal. So is the use of a well known landmark.

But I guess the clincher might be the fact that he was familiar with the original image.

1 upvote
ELLIOT P STERN
By ELLIOT P STERN (Jan 25, 2012)

so what if he was familiar with the image. Does it mean we all stop taking pictures everywhere because someone might have done it before. Of course some one did it before. Pushing the laws this far over the bridge is just too much to comprehend.

1 upvote
McCool69
By McCool69 (Jan 25, 2012)

>> To me the idea of making the rest of the image monochrome but the London bus red is kind of obvious, even banal. So is the use of a well known landmark.

I agree; this must have been done thousands of times in this central part of London alone.

I guess there are parts to the verdict that doesn't get presented in full here; maybe someone approached the 'original' photographer with intent to use the image in a commercial or something similar without coming to an agreement and then decided to hire another to take a similar photo, which is of course a dirty way of doing business and something that I understand the photographer would react to.

If the 'original' photographer came across the 'copy' by chance he would probably not have done anything about it - my guess is there is a lot more to this story than someone just taking a somewhat similar photo.

Comment edited 2 times, last edit 2 minutes after posting
1 upvote
GaryJP
By GaryJP (Jan 25, 2012)

I don't disagree with you. Especially as you can get the same effect in camera or on your iPhone anyway.

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

There's a link to the full judgement, in the story, that explains exactly why the judge came to his conclusion.

I'm not saying it's not a strange judgement but, until you've read it, you risk stating things that the judge has considered and dismissed.

0 upvotes
GaryJP
By GaryJP (Jan 25, 2012)

I did read his judgement. Just found his reasoning strange. A pale grey/white sky in London? That's par for the course.

1 upvote
CrazyCanuk
By CrazyCanuk (Jan 25, 2012)

Unbelievable... what a waste of public tax dollars -- this case should never have found its way on a judge's docket to begin with.

0 upvotes
Cyril Catt
By Cyril Catt (Jan 25, 2012)

I googled london red bus black white as suggested above.
Result:dozens of similar posters
British legal decisions are not based on a search for the truth: only on what is presented in court (excluding what is struck out from the record). Justice is not the aim.

0 upvotes
Techdoctor
By Techdoctor (Jan 25, 2012)

I don't know what the judge would say about all the Royal Wedding photos by the British Press. They were all shot from the same angle (location) from the same distance, and almost all of them captured the same kissing moment.

0 upvotes
bigian848
By bigian848 (Jan 25, 2012)

I understand protecting the photographers work, after all it is many clever and artistic peoples livelyhoods, but a style.....
it is not illegal to copy a masterpiece, just miss out the Rembrant bit in the corner and replace with 'Fred'. If this picture was not passed of as the origional photographer then I do not see the problem.Do not know circumstances of ruling, so seeing other side, if it was a published picture can understand origional photographers concern. Hope the judges eyesight was 20/20, that would really through a spanner in the works.

0 upvotes
JohnMP
By JohnMP (Jan 25, 2012)

The CRUCIAL POINT IN THIS is that the infringer admits he deliberately set out to produce an image inspired by the defendant's image, but also deliberately trying to make it sufficiently different so as NOT to infringe copyright.

The judge is basically saying that the infringer failed and it does therefore constitute a copyright breach. Rather than get all angsty about this you should perhaps recognise that this decision might help YOU protect your work.

Thats totally different from the interpretations being offered in the uninformed BS thats being peddled in this thread.

Read, consider (and try to understand) the judgment before commenting folks.

2 upvotes
marosini
By marosini (Jan 25, 2012)

Indeed, even if I'm not aware of british legislation mechanisms, it looks to me quite clear that this judgement is mostly the result of a very poor defense

0 upvotes
dstate1
By dstate1 (Jan 25, 2012)

Perhaps it would have ok if he had waited for a green bus to pass by...

0 upvotes
sasastro
By sasastro (Jan 25, 2012)

This seems to me to have far wider implications than black and white with colour photos. ' Schools ' of art have always existed. Groups of people do similar work. The famous designer starts something that ends up in every high street shop. Rock and roll was new once but everybody copied it. Satire and advertising rely on forms of copying. Supermarkets pinch ideas from rivals and package them differently. How is this case special and different, regardless of how new the technology or idea is. Ultimately he has said fashion or cliche is illegal.

0 upvotes
jjlad
By jjlad (Jan 25, 2012)

I guess what's bothering me is that if any judge were to slap infringement on something like that ...how about every photo of the 'tower' being broadly interpreted as similar to another.
Is there any proof the second shooter was influenced by the first other than the color on B/W ...which even I would have been tempted to do if I'd shot that scene from one of those or a different vantage point. That infringement is even being considered here is evidence that as a community of people ...we're really losing it. It's like saying we can't do anything at all like someone else does. "Don't succeed as a photographer ..another person already did that and has the rights to it!!"
Lamentably ridiculous! Don't kick a goal with your shoelace undone ..that's infringement because it was done before! Hey ..your camera is pointing at the moon ...you're going to be in a lot of trouble if you press that shutter buddy!
jj

Comment edited 3 minutes after posting
0 upvotes
///M
By ///M (Jan 26, 2012)

The 2 images have as many differences as similarities, wasn't there a professional photographer employed in this case? Only a total noob would conclude the first cliche example was copied by the second cliche shot, which was composed with a different angle of view, from a different viewpoint. What would have been a good defense would have been to find a photo with an earlier copywrite that would then negate the copywriter image being defended in this case.

0 upvotes
Laurentiu Todie
By Laurentiu Todie (Jan 26, 2012)

The judge may have considered the "copy" just as uninspired as the "original", therefore infringing on its lameness.

0 upvotes
LloydPup
By LloydPup (Jan 26, 2012)

The Judge has invented an offence of 'intent to mimic artistic expression', which is ridiculous.

In fact, even copying (or intent to copy) is not an offence in British law. Only 'Copyright Infringement' is an offence, but that is not the same as copying per-se. For example, it is perfectly lawful to copy an un-patented idea (as in this case), or copy a work which is in the public domain.

Intent and the prior relationship of the two people is irrelevant, because there was no copyright infringement! You can't find someone guilty of 'intent' when what they are intending isn't unlawful!

Ultimately, copyright only covers the expression of an idea not the idea itself. The judge has confused the legal meaning of 'expression' in copyright law, with 'artistic expression'.

0 upvotes
Total comments: 738
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