UK Copyright case: Different, but Same-Same

If you recognize the above images, its probably because you've seen some reports online about a recent English copyright case. Its seems to have been first reported by Amateur Photographer magazine, and then picked up by DPReview and in turn made its way around various blogs and internet forums - Boing Boing and Peta Pixel amongst others. 

From the secondary commentary it looks like there's a game of internet Chinese whispers going on, with subsequent "reports" trying to outdo each other with the shock value of their commentary.  The Boing Boing article is the worst for just substituting its own ideas for what actually happened in the case.  

Reporting on legal cases is difficult enough, however the trend lately seems to be to pick up other articles, take out some chunks and never bother to read the case.    

What happened?

This is a fairy unusual case with an odd background. It doesn't reall hinge on the striking similarity of the two images. Its about copying in the sense of looking at one photo and re-creating the parts. In this case it was done digitally by stitching together four other images and then pasting on a red bus. Presumably the license for the original was too expensive for the company. 

This is roughly how it went:

1. The tea company copied the original image from the photographer and uses it on their product. 
2. The photographer sued and reached a settlement from the company to pay a royalty.
3. Tea company stoped using the first original image, and got their graphic designers to make a similar image in Photoshop from a composite of 4 other photos and a stock photo of a red bus. 
4. Photographer sued the tea company claiming the new image is still a copy of the original image.
5. The Judge looked at the evidence, and decides that the second image is a copy.

The decision reached was that the tea company set out to create an image that was similar to the original, but different, and ended up creating an image that was too similar because it copied the significant parts of the original, including the way elements were placed.  

The case doesn't set any new precedents, doesn't change the law isn't a "shocking" decision, and doesn't have any huge consequences for photographers.

The judgment can be found here:  Temple Island Collections Ltd v New English Teas Ltd and Another (No. 2) [2012] EWPCC 1.

What's the Law?

In general, copyright protects the substantive expression of ideas in creative works. 

In practice, some breaches of copyright are easier to see and understand than others.

• If you use the photo someone else has taken without their permission it can be a breach of copyright.
• If you take your own photo its usually not a breach of copyright. 

In between these two is the situation where someone re-creates or imitates another person's image by some process of copying, even if its not an exact facsimile.    

It is in this last category that there can be cases that are less than clear cut. 

Independent expression:

You can't have a breach of copyright unless there has been copying! 

This problem doesn't arise is when there are two independent expressions of the same idea. This is particularly common in travel photography. The thousands of people who have shot images of London's landmarks doesn't stop each of those photographers having copyright to their own images, as long as they're original expressions. Previous photos of a place don't prevent anyone else from taking, publishing or selling a photo of that same landmark. 

This case is different is because these aren't two independent photographs. One is a photograph that has been manipulated with Photoshop to remove background colors. The second is a Photoshop composite of various other images arranged together to form an image that has several elements in common with the first image, and given the same color removal treatment as the original. 

The second image was created with apparent instructions that it should be similar, but not the same as the original. The judge simply decided that it was too similar given that it was produced with reference to the first image.

How does this affect Photographers?

Many photographers who have seen the commentary are wondering how it affects them. 

This case doesn't stop you from:

• Photographing places that have been photographed before
• Using ideas and techniques that you see or learn somewhere else
• Photographing situations when the end product looks similar to existing photo

Photography a good example where many factors combine to give effect to the photographers individual creative expression:  Color, timing, composition, movement and focus to name just a few. 

A useful paragraph from the judgment that should give some comfort to photographers is this one:

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. 

Ideas, techniques and places alone are not protected by copyright. In this example, its not a breach of copyright to take a photo of a red bus, passing Big Ben, or even to Photoshop the whole thing into black & white while leaving the bus red. The judge actually looked at other photos with the same technique, including this one from Andres Rodriguez available on iStockphoto (para. 45) and said: "the collection of other similar works relied on by the defendants have worked against them because the collection has served to emphasise how different ostensibly independent expressions of the same idea actually look". 

What is however a beach is to take an existing photograph and to try to re-produce it, which is what the judge decided happened in this case. On this reasoning, it takes more than taking a photo or even applying a few filters for there to be a breach of copyright.

Some comments on the commentary:

DPReview: Similar, but not copied, image found to breach copyright. 

The DPReview title is misleading - If it had said "Similar but not identical image, found to have been copied and in breach of copyright: it would be more accurate. If there was no copying, there would be no breach! 

Petapixel: If you’re a photographer in the UK, you might want to think twice about shooting and selling a photograph that has a similar composition to an existing photo.

There's nothing in this judgment or in UK law that stops you from shooting or selling photos of landmarks, even if its similar to something that's been shot before. 

Boing Boing: "What the judge ruled was that photographing a scene that is "substantially similar" to a scene someone else has already photographed infringes the first shooter's copyright."

No, the judge didn't say anything like that! He said the exact opposite - you can photograph the same scene. What wasn't allowed was Photoshopping together several other images so that they look like someone else's photo when you're using that photo as a reference.

Boing Boing "The judge here ruled that the idea of the image was the copyright, not the image itself."

Again, no he didn't. He followed well established case law and applied it to the facts before him and made a judgment based on the similarity of elements in the copied image and its background of having been created with reference to the first.

Where would this principle apply in photography?

The situation that comes most readily to mind is when you have photographs that are produced through elaborate staging or the end product involves unique Photoshop techniques. This isn't so common in travel photography, but may be more common in other areas of commercial photography.

An example is this one: a businessman riding a rhino through an office produced by photographer John Lund. While the idea of funny animals and animal concepts isn't something that can be copyrighted, the expression of those ideas into images through unique compositions and sets are generally protected.