We have often discussed the ever-widening scope of copyright and trademark laws. This trend has prompted lawsuit over using generic images or terms, obvious parodies, or names. Now, an English court has ruled in favor of UK souvenir maker Temple Island Collection Ltd against New English Teas for using a picture of a London bus. Not a picture taken by Temple Island, mind you: Taking its own picture of a London bus that the court deemed as too close to a picture of a London bus taken by Temple Island. The Defendant used photoshop software to alter the image.
There is no question that the photos appear similar and that a similar technique was used. The Defendant indeed tried to vary the pictures. The fact that the defendant wanted to avoid confusion between the pictures was used as evidence against it:
It is quite obvious that in no sense has any photocopying style reproduction taken place. The defendants’ work was created from photographs Mr Houghton took himself. It is also quite obvious that the point of the exercise was to avoid infringing. Mr Houghton was clearly trying to avoid infringing. His and his company’s case is that the claimant cannot use copyright law in effect to give them a monopoly in a black and white image of the Houses of Parliament with a red bus in it. He clearly knew about the claimant’s work when the second image was produced because the whole point of the exercise was to produce a non-infringing image given the complaint about the first image the defendants had used.
Then there is the key similarity (beyond the fact that it is a London bus):
Although the images undoubtedly differ in their composition, elements of the overall composition of the claimant’s image have been reproduced. The bus is a Routemaster, driving from right to left with Big Ben on the right of the bus. The riverside facade of the Houses of Parliament is part of the image. The bus is on Westminster Bridge (albeit in a different place) in both images. This is obvious in the claimant’s image and can be seen from the presence of the balustrade on the left in the defendants’ image. There are some people visible but they are small (and in different places). There is no other obvious traffic. The edge of Portcullis house is visible on the right. Running from top to bottom, there is a substantial amount of sky in the picture (albeit more in the claimant’s) and the top of the bus is roughly the same height as the facade of the Houses of Parliament.
This is new precedent that will likely to cited widely inside and outside of England. Part of art is imitation. New painters or photographers introduce new techniques or perspectives that are then picked up by others. Clearly, the subject of this picture is the same, but it is an iconic image of London. The ruling against this company can be extended to a host of different areas where new techniques or imagery are adopted by others. I can understand the concerns raised by these photos. It does appear to be an effort to capture the same imagery and effect. However, this is a picture of a public space. It is hard to see how a person can claim a public image like a sunset when reproduced with a particular lens or process. These laws have now flipped the purpose of the laws, which were meant to foster creative expression by protecting artistic products. The judge notes “I sympathise with Mr Houghton in his wish to use an image of London landmarks. He is free to do so. There are entirely independent images of the same landmarks available to be used which predate publication of Mr Fielder’s picture. But the defendants do not want to use those, no doubt for their own good reasons.” One reason may be that they want to take this picture and use a popular technique for its reproduction.
As I noted, this does raise some close questions. For example, if someone reproduced Andy Warhol’s Marilyn Monroe, it would raise a series infringement claim. His addition of color and scheme was unique. This case raises some of the same issues but sweeps too broadly. The Court notes “[a]lthough the techniques used by Mr Fielder to achieve the effect he did may have been simple, the result has an aesthetic quality about it which is the product of his own work.” That however would make any public image a form of private property even when produced with simple techniques. There is no limiting principle. Is it simply because Fielder’s image is iconic? What about less iconic photos by countless other photographers. If I use the same simple technique and take thousands of photos around London, do I now own those images — even against images produced independently against others? I admit it is a tough question but I cannot see how the ruling can be easily limited. If it cannot be so limited, it creates a chilling effect on creativity.
The question is when will the public organize itself, as it did over SOPA/PIPA, to demand a change in these laws which now inhibit creativity and free expression. There may be a way to accommodate the concerns raised in this case in such laws, but the current laws appear to be exponentially expansive.
Here is the opinion with the photos in the exhibits: London Bus Opinion
Source: Amateur Photographer
The judge has decided that his special efforts to avoid infringement are proof that he didn’t want to pay, therefore, he copied the image even though he did not.
This is like saying I’m guilty of murdering someone because I made special efforts to never have done it ever. It’s absurd. He either copied it or he did not. He did not, and yet he is guilty of it. Really weird.
And that’s what we’re running towards! (like a runaway train)
Too much copyright is bad but it is undeniable to me that the guy was stealing the claimant’s brandmark – it is not the iconic character of the image in general but its use in the business activities of these two companies. If the guy wasn’t stealing this idea, why didn’t he photoshop the colors differently or add a logo or something. As a consumer I would confuse these images as relating to the same company. Also the claimant’s pic is manifestly better in every way and so the bad pic would detract from trade.
This could be the end of copyright and the beginning of copywrong …
As much as I understand it, this sounds more like a trademark claim. I was under the impression that copyright covered a particular “expression” of an idea, not the idea itself. Ah well.
As an architect, I’m just glad that we have a bunch of (I hope!) well established carve outs. No one is going to be able to patent stacking bricks up with mortar to form a wall. Or just because there are millions of sets of “blueprints” that include a detail drawing showing drywall screwed to stud wall framing, with a door frame attached, that no one is going to be able to copyright the idea of… a detail drawing showing drywall screwed to stud wall framing, with a door frame attached.
And the fact that copyright claims in architectural design are very, very limited, lets us get stuff done.
If we had to deal with the crap that software developers have to deal with, or stuff like this in the visual arts realms, we’d all be homeless because nothing could get built or remodeled.
Insanity reigns supreme!
Hi Magginkat!
Tis the Season of Overreach, stepping on it’s D*ck Everywhere!
Greed on Parade for Folks to Wonder At!
Love when it’s brought to Peoples Attention!
Mo!
b.
This is How Ridiculous “Copyright” can Be!
VERY Little “Original”, Non-Derived Work Out There…
What there is, Usually Just someone Attuned, picking Out of the Ether, a Good Idea whos Time has Come.
Check the History of Invention, Proof of That lil Human Trait All Over the History Books!
Two observations:
First, my thought on SOPA and PIPA, and the overreach both bills had in terms of protection of intellectual property. Both bills enforcement provisions would be the equivalent of a photographer saying, “I have taken a picture of the Statue of Liberty. In order to protect my copyright, nobody else is ever allowed EVER to take a picture of this statue.” This case seems to be similar — the souvenir company is not only claiming copyright of the photograph, but claiming that any similar photograph is a violation.
On the other hand, this seems similar to a case involving Bette Midler. She was asked to sing a jingle for a car company (if I recall correctly), and when she declined the ad agency hired another singer to imitate her. In that case the agency was trying to do an end run around having Ms. Midler’s voice (or a reasonable facsimile) without Ms. Midler’s participation.
Appropriations…..for a commercial Advantage….Really now..How rare…
This means that we can make our own copy of the court opinion, put a little handle on it that says DogsRUs, and then start selling it. Then we can sue the British purveyors of the original copy for copyright infriction when they try to sell it, use it, wipe the rear end with it.
Just like software patents, this rises questions about how much of this is unavoidable.
If you want to have the houses of Parliament in the background, and a bus in the foreground, then you’re going to be taking the picture with the bus on Westminster Bridge, because you need the distance and there isn’t the distance on the other side.
Given that, the bus has to drive from right to left, so you can see the front of the bus, and the Big Ben tower has to be on the right of the bus.
You don’t want to have obvious traffic, because the point of both photos is to show two of London’s icons, not other random traffic.
The top of the bus being level is due to the height of the building and the bus, and the desire to get the bus close enough that it can be seen, but not so close that it dominates the picture.
The only thing I can see about these pictures which aren’t dictated by the logistics are the exact positioning of the camera & bus (both obviously different) and the technique used. However highlighting colours on an otherwise black and white image can’t be unique, and has been used at least since the early days of photography.