My colleague, Sherif Malak, has been looking at a recent case involving a photograph of what many would consider a famous but commonplace London city scene – a red Routemaster bus travelling over Westminster Bridge. In a somewhat surprising decision, it illustrates the impact of the European approach in relation to what is actually protected by copyright i.e. what elements can't be copied without a licence: expressed in Euro-speak, it is those that are "the author's own intellectual creation". Sherif examines the judge's decision and what elements of the photo in question were protected.
Souvenir maker, Temple Island Collection Ltd (TIC) recently succeeded in its claim against New English Teas (NET), a supplier of tea products, that the photo NET was using on its product packaging infringed the copyright in TIC’s photo.
Whilst the ruling will on the one hand benefit photographers and their licensees by acting as a deterrent to copycat attempts to recreate their photos, others will have to think twice before recreating a photo they do not own, or certain elements of it, even if it is a commonplace scene or image and particularly if that photo is in commercial use.
In the ruling, the judge summarised the law remarking that “it is possible as a matter of principle to infringe copyright in a photograph in an appropriate case by recreating a scene which was photographed” i.e. copying does not require making a straight facsimile reproduction.
Admitting that it was a difficult question to answer, the judge nonetheless decided that the elements that were protected by copyright derived from and were the expression of the skill and labour exercised by the photographer, Mr Fielder (TIC’s MD) or, put in the way expressed in the Infopaq case: they were “the author’s own intellectual creation”. And that those original elements had been infringed in NET’s photo.
The elements that were infringed included the photo’s overall composition and the visual contrast of its features which (an interesting and novel aspect to this particular case), had been largely achieved by manipulating the image using Photoshop to “satisfy [Mr Fielder’s] own visual aesthetic sense” (only the bus was in colour and the sky and certain people in the photo erased). In fact, although not material to the case, there was even some discussion as to whether these manipulations rendered the work a “collage” rather than a photo.
Both NET and its MD - the photographer of the infringing photo - were jointly liable for the copyright infringement. So the case is also a reminder that everyone in the publishing chain must be vigilant regarding these issues, as potentially, each is at risk of being on the receiving end of a claim form.
If you'd like to find out more, the judgment can be found here with the photos set out in the Annexes at the end of the page.
Have a good weekend!