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