UK Court Says You Can Copyright The Basic Idea Of A Photograph

from the say-what-now? dept

We’ve talked a lot in the past about the “idea/expression dichotomy.” This is an important concept in copyright law that says you can only copyright the specific expression, and not the idea. This is supposed to protect people from getting accused of copyright infringement for basically making something similar to what someone else made. Unfortunately, as we’ve been noting with dismay over the past few years, the idea that there’s some bright line between “idea” and “expression” has been slowly fading away, and courts are, increasingly, effectively wiping out the distinction. In the US, we’ve seen this with the ridiculous case between a photographer, David LaChapelle, and the singer Rihanna, because some of her videos were clear homages to his photographs. The expression was entirely different, but the judge didn’t think so, and Rihanna ended up having to pay up.

Over in the UK, though, we have an even more ridiculous ruling, as pointed out on Boing Boing, where a judge has ruled that a photograph using a similar idea, but totally different composition is infringement. You can see the two photographs here:

As you can tell, the expression is totally different. Obviously, the idea is quite similar, but ideas aren’t supposed to be protected. You can read the full ruling here, in which the court seems persuaded by the fact that the original photographer had to do some Photoshopping to the image. Now, it’s true that European copyright laws are much more open to “sweat of the brow” arguments for copyright (which is not the case in the US), but even so, this ruling is ridiculous and troubling. The court even admits that the basic elements of the photograph (Big Ben, Parliament, London bus) are pretty common. It also admits that highlighting an object in color on a black and white background is pretty common. But it still finds that this is infringing.

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 cliched London icons.

What troubles me here is that this seems to turn the judge into an art critic in order to determine how the different pieces are put together and what counts as expression vs. idea, and what parts are “copied.” Perhaps even more troubling is the following sentence:

Mr Davis submitted that a finding of infringement in this case would give the claimant a monopoly which was unwarranted. He uses the word “monopoly” in a pejorative sense but it does not help. All intellectual property rights are a form of monopoly, properly circumscribed and controlled by the law. In any case I do not accept that a finding for the claimant in this case is unwarranted.

While he’s right that all intellectual property rights are a form of monopoly, the question here is whether or not this is an appropriate monopoly. The reason Davis pointed out that this was a problem was because, as the court admitted earlier, the fact is that this would be creating a monopoly on commonly used photographic elements. That’s the problem. Either way, it’s yet another example of copyright law being used to lock up culture.

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Comments on “UK Court Says You Can Copyright The Basic Idea Of A Photograph”

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104 Comments
Duke (profile) says:

Re: Hmmm, smells like...

The “artistic work” is the photograph. Rather confusingly, in UK Copyright law “[an] “artistic work” means a … photograph… irrespective of artistic quality”. It’s artistic because it is a photograph – it doesn’t have to be *good* to be protected by copyright.

Onto the case itself; one thing a lot of commentators are missing on this is that the two photographs are causally linked; the defendant saw the claimant’s photograph and said “I want something like that.” He didn’t just take a photograph of the same things, from a similar position (which there’s an 1997 case on, involving an Oasis album cover, where the copyright claim was dismissed, despite taking a photo of a “set” prepared for the main photo), he knowingly and wilfully copied all the elements of the first work.

A possible analogy would be to taking characters out of one book and using them in another, maybe renaming them and changing some minor details, but keeping the basic facts and figures the same; the expression is different, but it is still an act of copying (and a “parody” or “criticism” defence would only apply if there was actual parody or criticism, rather than just copying in this case).

It’s an odd ruling, and caught some people by surprise, but it isn’t particularly outlandish. For a 21st century copyright case. In terms of common sense etc., it’s a stupid ruling in many ways, but the judge is limited by the law.

Almost Anonymous (profile) says:

Re: Re: Hmmm, smells like...

Bullshit. Sorry man, but that is total bullshit, I refuse to believe UK law made this ruling inevitable.

He should have been able to recreate the photo using the exact same angle, lighting, composition, and photoshopping and STILL not be infringing because it is a new work, albeit derivative.

Of course, after the Rihanna bullshit here in the U.S., we don’t have much of a leg to stand on either.

Anonymous Coward says:

Re: Re: Re:2 Hmmm, smells like...

Because he didn’t make a copy of the photograph – he took his own photo, over which he would own the copyright.

I’m in the States, but isn’t copyright just that? The right to copy (or not copy) a specific work?

If the guy made actual copies of the photo, like on a copy machine, I could see an actual infringement claim, but he didn’t do that. He took his own photo. Elements in the photo shouldn’t enter into it because then you’re claiming what people see with their own eyes as part of infringement, and that’s just ludicrous.

nasch (profile) says:

Re: Re: Re:2 Hmmm, smells like...

There’s copyright in the original photograph.
The defendant took that photograph and copied all the major elements of it (i.e. a substantial part of it) to make his photograph.

By that reasoning, nobody could ever take a photo that’s substantially similar to someone else’s photo, because the first photo is copyrighted.

Anonymous Coward says:

Re: Re: Re:2 Hmmm, smells like...

The 2nd photo is taken from a different location at a different angle of a (probably) different bus at a different position with (likely) different camera settings at a (likely) different time of day.

The only similarity is the subject matter, location, and presentation (red on black/white background). Your presumption is absurd.

Anonymous Coward says:

Re: Re: Re: Re:

hmm, how about you two ‘occupy’ all that judge’s public hearings and every time a cop/prosecuter/other critter/ tries to introduce a mug shot as evidence in various cases you intervene and claim that the photo is a copyright violation?

since he decided himself that the photographer and subject in focus (it’s NOT THE SAME BUS in those photos) don’t matter much, let’s see how much/long they can pay for copyright violations in mug shots šŸ™‚

Anonymous Coward says:

Well in that case I know what I’ll be doing to get rich, taking photographs of lots of random people and buildings and inventions!

If one of those people/things/locations becomes famous imagine the money I can make suing others for taking pictures of those things. I took a vaguely similar picture first damn it, so I demand to be compensated for it! Say $1,000 per photo?

wvhillbilly (profile) says:

Re: If this decision is taken to its ultimate conclusion...

Get rich quick? No you won’t. Only the lawyers will. They will all get filthy rich from everybody suing everybody else over infringing their copyright on every manner of photograph that can be taken, and we’ll all be in jail for infringing everybody else’s copyright on photographing everything imaginable.

Kam (profile) says:

Re: Re:

I read this yesterday somewhere as well, may have been a link off HackerNews.

Anyway… the main story is not exactly as it has been reported here. The company that got taken to court sell smoe sort of tea and they had the first picture on there box. They then decided they didn’t want to pay the photographer any money so they had a similar shot taken and used that thinking they could get away with it. The judge decided that since they had expressly gone out and take a similar shot for this purpose then they were in breach… I’ll see if I can dig out the article since someone else made a comment and explained it much better than me šŸ™‚

Anonymous Coward says:

Re: Re: Re: Re:

If the judge is going to decide like that, there’s a fetric muckton of amateur photogs that must be wetting their pants right about now.

There is nothing original about either photo; each photog owns the copyright to his photo, neither of which is terribly original in concept or execution.

What a weird decision!

Anonymous Coward says:

Re: Re:

its not only them, its the officials who push for these laws and regulations, who take advantage of those with lack of knowledge by claiming that their course is the best and only course of action, and they lap it up

So, old cronies and those who take advantage of the old cronies, one thing i dont wanna see is the former being replaced with latter

We’d all like to see a shake up no doubt, but i get the feeling so would some of those in power, maneuvering a seemingly impartial official on to a place of power. In that situation, how would we recognise the snake in the grass

Andrew (profile) says:

One of the other things about the judgement that concerned me was the judge’s reliance on independent design, noting that if the defendant had come up with his image without using the claimant’s creation as a reference it would have been fine. Seems to be dangerously close to creating a ‘first to publish’ right with similar images for copyright. Though the judge apparently has no problem with the claimant being similarly ‘inspired’ by Schindler’s List.

Call me Al says:

I was having this conversation with a friend of mine yesterday. It sounds terrible but I am becoming more and more convinced that once the current generation of politicians, judges etc at the top of the tree die off the world will improve immeasurably. They do not understand technology. They cannot cope with the speed at which things have changed and continue to change and so they are fossilised with outdated ideas, beliefs and prejudices.

Once they are gone then a generation of people who have grown up with ever changing technology will move into their places, hopefully with an at least partially instinctive understanding of the issues which really are so important in the modern era.

Marcus Carab (profile) says:

Re: Re:

The thing is that by the time that happens we will be facing even newer, scarier technologies that are hard for that generation to get their head around. Imagine if 20 years from now, direct brain interaction with devices becomes common and mainstream – do you think all the people who are 20 now and 40 then are going to be completely comfortable and familiar with it? Or do you think they are going to be just as freaked out and confused by the kids-these-days-with-their-brain-phones as today’s older generation is by today’s younger generation?

Maybe a little bit, actually – each new generation seems to have a slightly higher tolerance for the speed and scale of social change. But it’s still an incremental process – and the fact is that you and I and everyone else, no matter how savvy they think they are, will probably catch ourselves scoffing at something we don’t understand at least a few times as we get older. Worse still, there will be other times where we do it and don’t catch ourselves. So I personally refuse to take it as granted that my generation will be less prone to cluelessness – and instead focus on making sure I, personally, don’t start mocking the kids on my damn lawn no matter how tempting it becomes…

Almost Anonymous (profile) says:

Re: Re: Re:

Can you imagine the MPAA in a world with replacement cybernetic eyes? Say with full ultra-hi-def recording capabilities hardwired to your internal peta-meta-terabyte wet-drive?

Interesting side note, I read about a dude with a missing eye, he was having a “replacement” eye designed with a built in recording (or was it broadcasting?) device; he was going to record a documentary with it for that ultra-real POV feel.

Ahh, found a link.

John Fenderson (profile) says:

Re: Re:

Similar sentiments were expressed in the ’60s: that the legislators of the day were just too old and didn’t understand the world anymore. That when the ’60s youth entered the realm of politics, then these problems would evaporate like a morning mist.

The thing is that the people in power right now are those ’60s youth. I see no reason to think today’s youth will represent a revolutionary change when they enter politics either.

John Doe says:

This is amazing!

I read about this last night on a photography blog. This is just amazing and even more ridiculous. So what if the 2nd guy “copied” the idea, his execution was actually better. That is the very definition of innovation, the refining of ideas to something better. Do we want to fully stop innovation now; was slowing it to a crawl with copyright and patents and lawsuit not enough?

Natalie says:

If dance can be copyrighted, I’m going to copyright a dance in which you use your lungs to exhale and inhale in a slow constant pattern for long periods of time. I’ll call it breathe-stepping. Anyone who tries to perform this dance, aka breathe from now on must fork over $100 for every minute you perform my dance for the rest of your life. Apparently a judge will let me do this now, right?

Sneeje (profile) says:

You know, this is where the judge faltered and I wish they would address this. Instead of focusing on what is similar, I think that the judicial system ought to determine if they could explain, in precise terms, what the second photographer would have had to do differently for his work to not infringe.

After these rulings we’re all left wondering exactly how to avoid infringement in future situations because the logic is fluid and arbitrary.

wvhillbilly (profile) says:

Re: Re:

Perhaps could have colored the bus green? Or left the bus B&W and the rest of the picture in color?

This seems more like a patent issue to me than a copyright issue, but there would be too much prior art on this idea for it to be patented. I think this judge must be confusing the rights of patents with the rights of copyright and applying patent rights to a copyright. They are not the same.

Kam (profile) says:

Read the comments, much more insightful than the journalism around this article…

http://news.ycombinator.com/item?id=3508615

pbhjpbhj: “An analogue might be recreating Warhol’s Campbell’s Soup Cans with the cans marginally rotated, basing the piece on the original work (trademark issues aside). Now I’d like to say that I think that piece actually would be a valid new work – and have quite a lot of substance – but nonetheless it would be derivative of the original beyond mere inspiration IMO.”

John Fenderson (profile) says:

Re: Re:

After having read the ruling and the comments in the link that you provide, I disagree that the commentary is very insightful. Most of it is beside the point entirely.

Disclaimer: I am a USian, and this is UK law about which I know nothing. But since I’m talking about what is right (in terms of the intent & purpose of copyright law in the US) rather than what is law, I think that doesn’t matter as much as it might otherwise.

The bulk of the commentary seems to revolve around intent, and it seems to me that intent isn’t relevant. Either the photo is a copy or it isn’t — and it’s very clear from just looking that it’s not. It’s a different photo. The photographer didn’t take the original, run it through a duplicator, and attach his name to it. He took a new photo that differs from the original.

Thus, in terms of copyright, there should be no violation. Yes, the purpose was unsavory, and if the original photographer had a reasonable contract then he could sure for contract violation, but it’s not a copyright issue. To make it so distorts the purpose of copyright.

Anonymous Coward says:

Let’s just let rulings like this happen. Let’s let people sue themselves into oblivion. Draconian laws all around! Lets make our number one export damages settlements.

I’m pretty sure that in the age of digital photography you can’t prove that you took a photo first. And for those of you that think a camera digitally signing a photo is proof you would be wrong. True proof of ownership died when people no longer hold the negatives….something that could be chemically dated.

Keroberos (profile) says:

If things keep going at this rate, in twenty years no one will be able to create anything because it will infringe on some previous creation.

I am beginning to think that the massive ratcheting up of copyright laws may in fact end up being the best thing for those of us that want to see copyright law reformed. The more restrictive it gets, the more likely that the average citizen is going to get inconvenienced or sued over it, the more likely there will be massive backlash from the general public (i.e. the backlash over SOPA/PIPA, and now ACTA). Hopefully the copyright maximalists don’t figure this out in time, so maybe we can get some real copyright reform started.

NameCensoredDueToCopyrightClaim says:

Re: Re:

If things keep going at this rate, in twenty years no one will be able to create anything because it will infringe on some previous creation.

Twenty years? Try two or three. The fucking copyright crap is totally out of control and is all tilted in the favor of big content.

Take a look at ACTA, they can claim copyright infringement on the use of a sentence. This has gone too far.

jakerome (profile) says:

Photographers are the next target

This trend has been evident for some time. But “established” photographers seem far more intent on expanding copyright & reducing creativity rather than having the foresight to understand that eventually they would be the target instead of the accuser. Wrote this half a year ago, seems more relevant today.
http://www.techdirt.com/articles/20110625/01030814852/if-jay-maisels-photograph-is-original-artwork-then-so-is-pixelated-cover-kind-bloop.shtml#c68
———————————-

The fucktarded part of this whole mess is that the staturory damages are wholly out of line with reality. By all means, Maisel should be able to sue for damages, even treble damages with lawyer fees awarded. With total sales in the thousands and less than 10% of that attributable to the photo, a payment in mid hundreds would seem quite reasonable.

But no, we?ve allowed Mickey Mouse corporations to extend copyright assignments to last decades and sometimes centuries instead of 14 years. We?ve allowed them to set statutory damages at such an obscenely high level that whole business models are now built around suing for infringing registered works where the underlying works never had commercial value even approaching 1/10 that assigned by the inane copyright regime. We?ve allowed and encouraged industry cartels to band together to sue citizens for tens of thousands of dollars for listening to a $1 song without jumping through the right hoops.

We?ve allowed the corporatists to squeeze the life out of artists such that commercial productions will refuse to quote 20 words of song lyrics in a 20,000 word book without obtaining proper clearances. We?ve allowed whole genres of art to be destroyed, as rap artists and music mashers can no longer create without begging for permission first to modify music in the same way as has been done for millenniums. We?ve gone lifetimes without a single work of art entering the public domain, instead allowing 4th generation descendents to distort their great grandparents work by schilling great works to the Disney or the other high bidder such that these layabouts can profit off the work that belongs to all of society.

And the photogs supporting these laws are the most fucktarded of all, because if they don?t realize that we?re the next target for ?permission based? copyright maximalists, then you haven?t been paying attention.

Nathanael says:

Re:

Forget two or three — *we’re already there*. It is already impossible to do any serious creative work without infringing on the grotesque monstrosity which claims to be copyright, patent, and trademark law. People only do so by ignoring the law.

This is like drug prohibition — it isn’t going to work. Nobody respects the drug prohibition laws except the brainwashed minority. Elites have managed to keep them going for about 100 years though. How long will they manage to keep the nonfunctional copyright laws going? Good question, but the copyright laws are far more damaging and so will probably collapse sooner.

The question is how many governments will collapse before these laws collapse. Many governments are teetering for other reasons anyway, with no legitimacy for a dozen reasons.

chinamonty (profile) says:

Re:

I agree. This ruling is absurd. This extrapolates to mean that all works written for a symphony orchestra violate the copyright of the first tune performed by a symphony orchestra. This is the legal system gone mad. If it had been put up as a design patent issue then maybe I could agree in part but then prior artwork would have shot it to pieces. Every tourist that has ever been to London prior to the original photo used in this case should be looking at their photos and launching a suit for breach of copyright on the supposed copyright holder.

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