I was recently linked to an article that seemed to be bad news for photographers (sorry I forget who by), which I reposted on Facebook. I would have left it there, but for one of the comments I got which observed that the judgement was based on not the similarity of the pictures but on a deliberate attempt to copy. Now that being the case I got our fearless (but sadly not talented) in house artist to make a dramatic recreation of the troublesome picture. It should be noted this is a dramatic recreation, not an act of parody as pastiche and parody are not exempt from copyright*
Now being a Londoner of some years, the idea that a red bus in an otherwise grey scale/black and white photo could be though of in anyway special seems odd to me, as for much of the year that’s pretty much how London looks. Red splash of colour from a bus in an other wise grey environment, why it must be spring, autumn, summer or winter but definitely some season and probably about to rain. But I’m told that’s not the issue the issue is that it was a deliberate attempt to copy (a fairly typical picture of a bus within sight of Parliament). Now if that was the case I can only say that looking at the two photographs they did a pretty crap job of it. Now the “original image” was taken in 2005, now my memory was never what it once was but I’m sure the sort of picture as is at the top of this post has been around for longer than that (any photo taken of a bus near parliament in spring, summer, winter… would probably be close enough). The people that brought the case felt their image was famous (never seen it before myself) and that the “Photoshop manipulation of the image played a ‘key part’ in the copyright victory”. So maybe just taking a photo won’t get you into trouble but applying obvious and (almost) out of the box photoshop filters will (Goth photographers with dramatic skies beware).
So lets look at the actual Judgement, I’m not going to fisk everyline as it’s too long and I’m too lazy but lets look at the highlights.
This is an action for copyright infringement. The claimant claims to be the owner of copyright which subsists in a black and white photograph of a red bus travelling across Westminster Bridge.
Now my inner pedant observes that if it has a red bus then it’s not a black and white photo, also picking out the bits of red in London in buses, phone boxes and post boxes has been done to death and beyond. I’d also observe that the film Schindlers List was made in 1993 which was famous for having only a single bit of colour(red) in an otherwise black and white film (a point mentioned in part 5 of the judgement).
It gets a bit safer for the rest of us as it seems that this was the second version of the infringing image, the previous one being withdrawn presumably because it was too similar. I suspect but don’t know this was a case of “fine if you say that’s too much like every other picture of a bus on that bridge we’ll make it more different”.
So in 2005 the people suing took a picture from a point where most tourists stand and then manipulated in a similar fashion to how Schindlers list was done. Thus putting in massive creative input worthy of copyright. The following year they started printing it on random tat and it’s apparently famous in the tourist tat world.
Then the people selling tea to avoid infringement spliced together a bunch of photo’s (so used a completely different technique) to fit in with their existing theme of “tins and cartons bearing images of English landscapes, Icons of England”.
So the judge accepted that:
“It is quite obvious that in no sense has any photocopying style reproduction taken place.”
The tea purveyors used their own photo’s and stock photo’s so those were all original works. So again the court accepted that they were trying to avoid infringement, on what has to be considered quite a clichéd image.
But apparently the argument is that the images look strikingly similar (not something I buy myself, but that is a matter of judgement), and according to EU law it seems:
copyright may subsist in a photograph if it is the author’s own “intellectual creation”
Which is fine, and photographers should have the rights to pictures they take, thought not I’d suggest the right to stop other people taking similar stock shots. Also it was agreed that the colouring was inspired by a film and the spot for taking the photo was a standard tourist spot so maybe not much intellectual creation there. Interestingly they then referred to an Austrian court, which in a previous judgement held that creative considerations such as “visual angle” contribute to it being “considered photographic works”. I pick out the “visual angle” aspect as those in this case are really quite different.
The judge went on to consider that:
When one is considering a view of a very well known subject like the Houses of Parliament with Westminster Bridge and part of the Embankment in the foreground, the features in which copyright is going to subsist are very often the choice of viewpoint, the exact balance of foreground features or features in the middle ground and features in the far ground, the figures which are introduced, possibly in the case of a river scene the craft may be on the river and so forth. It is in choices of this character that the person producing the artistic work makes his original contribution.
Now I’d observe again a red bus being the only bit of colour in London is pretty much an everyday expereince for most Londoners.
Whilst considering if it was a photograph or a collage, the Judge decide it was a photograph “since what has been manipulated is still ultimately a recording of light”, which I think would cover any collage made of photographs, or really anything else which faithfully recorded an actual scene. It gets more interesting that the same judge in this case had previously heard the case between the two parties mentioned above, which had been steeled resulting in them going out to make a non-infringing image. Whilst not wishing to suggest any issue with the judge in anyway I would question if having heard the previous case might have swayed his judgement some what here (presumably both parties were happy with it).
There were also images shown in court proving the point that this was a common scene, in fact going back to my London is grey point in some cases the judge couldn’t tell if it was a black and white photo with a red bus or not. Amazingly a man who works in the field of tourist tat was completely unaware of all this images of grey London with bright red objects being picked out, to quote the judgement:
These images were put to Mr Fielder. He had seen none of them. I accept his evidence. It follows that they cannot be said to have influenced his work.
This from reading the judgement seems to be the crux of the matter, because the tat seller wasn’t aware of any images picking out red objects in grey London his work was original, but because the tea seller was aware of such images he must have copied the tat seller and so was infringing. The judgement does list after all the many ways in which the images do differ.
Now a final bit which I think is terribly interesting:
But what they cannot have is a southbound Routemaster on Westminster Bridge before the Houses of Parliament at the same angle as the claimant’s work on a greyscale background and a white sky, in circumstances where they have admitted seeing the claimant’s work.
Now go look at the two photo’s again and tell me if that’s the same angle.
I’m quite surprised that the judge considers that:
It is not just another photograph of clichéd London icons.
Red bus, parliament, not clichéd London icons?!
So whilst my more learned friend is no doubt right this was about a deliberate attempt to copy, I fear that the bar for copying what to most people would seem clichéd or at least common images has been set terribly terribly low. Whilst ignorance of the law may be no defence ignorance of other peoples work obviously is. So I’m with amateur photographer on this, this is a problem for people taking what they think are obvious pictures, and I’d suggest that combined with ACTA it’s going to make it very easy for larger media outlets to crush even the most amateur artist selling the odd print via flickr of the like.
* To be fair I suspect dramatic recreations aren’t either but…
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