Sunday 22 January 2012

When Birss meets Bus: a study in Red and Gray

This weblog has received a note from Andy Johnstone on a recent copyright decision in which he reflects the concern of a number of recent correspondents.  Andy explains as follows:
"The week before last in the Patents County Court for England and Wales, His Honour Judge Birss QC gave judgment in Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1 which, while it is not binding on the High Court, nevertheless appears to represent a new and perhaps worrying development in copyright law. 
The case involved two photographs of a Routemaster London bus on Westminster Bridge with the House of Parliament in the background. Or perhaps that should read pseudo-photographs-- as both images were the result of varying degrees of post-production manipulation. However, nothing turned on that as the judge found that, even if they were collages, each potentially attracted copyright.

Looking at the two images, one is clearly not a faithful reproduction of the other. Yet the image on the right (the defendant's) was held to infringe the complainant's (above). It can be seen that they share a lot of the same 'look and feel' in the way the subject has been rendered -- but it has long been felt (see Laddie, Prescott & Vitoria paras 4.60 and 4.61) that the taking of two photographs of the same scene, especially where that scene is somehow iconic or distinctive, does not lead to infringement because each is original by virtue of to the creative input of the two photographers. In other words the 'idea' element assumes a lesser importance because it is obvious, and emphasis shifts to the 'fixing' of the idea. In this regard each photographer is independent of the other and so each has an equal claim to copyright in his or her respective work. 
Where this latest decision is of concern is that it seems to draw too heavily on the sort of analysis one might use to determine similarity in a trade mark. Judge Birss was clear that he had dismissed any suggestion that this case might have had overtones of passing-off, given that the two images were often to be found side-by-side on products aimed at tourists. But despite that he seems to have been persuaded to examine the 'idea' much more extensively than the way in which it was fixed. 
One factor which weighed against the defendant was the fact that he knew of the existence of the claimant's image before he created his own image. Indeed, he could hardly deny this since he  had lost an earlier action involving exactly the same claimant's image and another of his (the defendant's) which was very much more similar than the image in this case. Taking that as the starting point, the judge decided the case on the degree to which the second image used substantial elements from the claimant's image -- not in any mechanical sense of copying, but in the selection and emphasis of them. This is a long way from the argument in the American decision in Bridgeman Art Library v Corel, which involved the photographic reproduction of a painting, where it was held no copyright existed in the photograph because of a lack of originality. In the action before him, Judge Birss acknowledged the defendant's creative input by saying that his was a derivative work capable of copyright protection, but for the infringement which had been brought about by not having the permission of the owner of copyright in the underlying work. 
Another slightly surprising factor in this action was that several other examples of what might be termed 'prior art' were offered to the court, clearly indicating that there was nothing particularly novel about either the claimant's composition or rendition of his image. However the submission of this evidence did not alter the finding that the defendant used a substantial part of the claimant's work as the source for his own image. 
Most professional photographers are likely to find this decision worrying because it undermines the prevailing view of copyright within the industry".
If the learned judge's analysis, based on (among other things) the view of the Court of Justice in Case C-5/08 Infopaq as to what constitutes the protectable subject matter of an author's work, is correct, the advice which I have given law students since I first taught copyright in the 1970s is no longer reliable, that the photographer who recreates the effect of another's photograph of a public scene or monument is now a copyright infringer, and that there may now be a notion of copyright in an idea, a lay-out or a scheme for such a photograph.

I am also intrigued at the submission of evidence of 'prior art' in the form of a series of London bus-related photographs from Getty Images herehereherehereherehere and here. It seems to me that Corelli v Gray [1913] 29 T.L.R. 116 establishes that, once the claimant company has established that copyright exists in its work, that it owns the copyright and that  the defendant's work is similar, 'prior art' will avail the defendant if he can show that both he and the claimant copied from the same work -- and, by the same reasoning, Corelli v Gray should assist him if he can show that he infringed one of the Getty Images rather than the claimant's one. But wouldn't that be a case of jumping out of the frying-pan and straight  into the fire?


Francis Davey said...

I was interested in the remark by the judge that the earlier image - which had been very heavily photoshopped was a "collage". I thought we knew from _creation records_ that collages need glue.

Some of the protected elements do seem to have been editorial as much as compositional - given the degree of recreative work in the earlier image.

As for the prior art - better to be sued for a licence fee by Getty who would probably settle, than have to deal with a competitor who is interested in protecting a highly recognisable "brand" image through copyright. That's my guess.

Andrew Robinson said...

With my graphic designer hat on rather than my political hat, the concept is somewhere past 'obvious to one skilled in the art' and heading worryingly in the direction of 'as clichéd as posing so it looks like you're stopping the leaning tower of Pisa from falling over.'

john walker said...

Speaking as an artist the 'idea' of using a color contrast , in this case a warm, red bus against a cool, gray, back ground, to create an effect is as old as the hills

When I first visited the UK and London , it was a bit disconcerting to be in a place that I had never seen before, that was also so, in a visual cliche way, so familiar .

Are there potential implications for artists in general in this ruling?
For example could the makers of things like 'midsomner murders' have a copyright claim on the villages of Kent?

Crosbie Fitch said...

Perhaps we should completely abandon any pretence at an idea/expression distinction, even provenance too, and just work on the basis of similarity?

At least that way copyright would operate more simply, as a proper monopoly does such as patent.

Filemot said...

Indeed an intriguing case but the failure to run a defence of independent design seems to have been rather telling here. It may well go down as very special to its facts but I think @Ipkat's advice to students probably remains correct. There was far more artistic input into the image than just choosing a standard viewpoint even a famous one oft recommended
Like Francis I would have liked a bit more on the nature of the artistic work. There is a whole industry in creating photo-like images including CGI that might have liked a bit more considered authority. Have we let the TechCity down?

grabbeh said...

The submission of prior art certainly seems to have backfired in this instance considering Birss found that these submissions only served to show how different the copied image was to the previous submissions. This reinforces that the key element to consider were the manipulations made to the image, rather than the subject of the image itself.

In terms of wider implications, I think the point is that a claimant is more likely to be able to take action for a photo of a similar scene where specific manipulations are made to it. Whilst the manipulations in this instance could be said to be obvious or widely used, the fact the defendant acknowledged awareness of the claimant's image surely weighed heavily against the defendant in this case.

Andrew Robinson said...

Crosbie Fitch said...

"Perhaps we should completely abandon any pretence at an idea/expression distinction, even provenance too, and just work on the basis of similarity?"

The world would look very odd if the law required every single piece of designed material to look dissimilar to every other one.

Part of the problem is that the concept of 'similarity' is both subjective and likely to vary from person to person, as well as being a sliding scale (show anyone a table and 2 posters and ask them which two are similar, if you want to establish that all posters inherently infringe each other).

There is also an element of familiarity with the genre involved (ever heard anyone say they don't like a particular genre of music, because it all sounds the same to them?) I think 'is this intended to deceive the public about the origin of the object, or does it cause measurable financial harm?' would be a better test.

Andy J said...

@ grabbeh. I think the point that Jeremy and I were making in the post was that the claimant's image was not used in any way whatsoever to create the second image, other than as inspiration. There was no manipulation of the claimant's image, merely a re-use of some key visual elements within it, such as the bus, the Houses of Parliament and the use of selective colour. Up to the date of this judgment I think it is fair to say that being inspired by another work is not itself taken to be infringement, otherwise the net would be cast too wide. If UK law had a fair dealing exemption for parody or pastiche, as Hargreaves has suggested, that might well have covered what the defendant did in this case.
It is worth noting that HHJ Birss seems to have formed the view (or at least the defendant did not argue strongly enough against this view) that using selective colour is something out of the ordinary, and thus significant here, whereas in contemporary photography it is extremely common, to the point of being a cliche.

Andy J said...

@Andrew Robinson. Your suggested test is surely alien to the concept of copyright, as distinct from say Trade Marks (maybe you were just being provocative given your views on copyright!).
Copyright has always been, fundamentally, about protecting the author's intellectual labours (Crosbie will probably chuckle at this). In recent decades that ideal has been corrupted in favour of the commercial aspects and your suggestion would further entrench that bias. It is worth comparing this subject to patent law, where the concept is (or was) also to protect the inventor's intellectual efforts but at the same time, to deliberately stimulate technological progress by encouraging inventors etc to leapfrog over each other's ideas with newer (and hopefully better) types of mousetraps.
Copyright should have some of the same aims (but without the tortuous examination process). So for instance most art students will study the masters in order to understand what makes good art for much the same reason. (I am not suggesting that either of the images at issue here are good art!) Thus introuducing an 'is it likely to deceive the public' test to copyright infringement cases is not, in my view, a desirable way forward.

Francis Davey said...

The odd thing here is the defendants set out to create something that was like the claimant's image but which didn't infringe copyright in it. In other words they wanted to copy it but not so much as to infringe.

Crosbie Fitch said...

My suggestion was sardonic, intended to ridicule these anachronistic and unworkable privileges.

While they create much lucrative work for lawyers, they are a menace to individuals, a burden upon society, and should be abolished.

Tom said...

Seems to me this shouldn't have been a copyright dispute at all - the issue really was akin to passing off. Someone choosing a similar image so that goods might be confused.

Tom said...

As noted above - cases like Infopaq and this one, which seem to be gradually removing the "substantial part" defence boost the argument for fair dealing exceptions for parody and pastiche, quotation etc.

Anne Fairpo said...

The intention seemed to be the most interesting point in the judgment – not just that there was similarity, but that the similarity was a deliberate intention to copy the distinctive elements of the earlier work.

Without the previous history between the parties, it would seem difficult to demonstrate that intent to copy where the works are as dissimilar as these.

Marty4650 said...

In my view, the second image is simply done in the "style of the first" and is an artistic improvement. This should not be considered an infringement.

That is, unless in the UK, one can copyright landmarks they don't own, or photographic styles and techniques that you never invented yourself.

This whole case is bizarre.

Unknown said...

Let's look at it this way. Would an actual photograph of the same scene be a copywright infringement? Probably not. But by rearranging the basic elements in a very similar way, and copying the color scheme, etc. the 2nd photographer left himself open to the charge of infringement. Photographer #2's copied the method or process of the first person, leading to a similar result. I think that's why he lost his argument.