Photographers face copyright threat after shock ruling (update)
Tuesday 24th January 2012
Photographers who compose a picture in a similar way to an existing image risk copyright infringement, lawyers have warned following the first court ruling of its kind.
UK souvenir maker Temple Island Collection Ltd has won a ruling against New English Teas which it had accused of breaching copyright by using a photo of a London bus on its packaging.
Welcoming the news, Temple Island Collection’s managing director Justin Fielder – who shot the image in August 2005 and then manipulated it using Photoshop – said: ‘As creator of the Red Bus image, and originators of the product concept, we gave New England Teas the opportunity to license with us and work collaboratively, but this was declined.’
The case, heard at the Patents County Court in London on 12 January, could have serious implications for photographers, according to photographic copyright expert Charles Swan, a lawyer at Swan Turton, who said: ‘His honour Judge Birss QC decided that a photograph of a red London bus against a black and white background of Big Ben and the Houses of Parliament, with a blank sky, was similar enough to another photograph of the same subject matter to infringe copyright.’
He added: ‘The decision is perhaps surprising, given the commonplace subject matter of the photographs. The judge himself admitted that he found it a difficult question, but in the end he decided that a substantial part of photograph one [Temple Island’s image] had been reproduced in photograph two [New English Teas’].’
Swan warned: ‘The Temple Island case is likely to herald more claims of this kind. The judgement should be studied by anyone imitating an existing photograph or commissioning a photograph based on a similar photograph.
‘“Inspiration’ and “reference” are fine in themselves, but there is a line between copying ideas and copying the original expression of ideas which is often a difficult one to draw.’
Though, in the past, the cost of such court actions has made them ‘uneconomic to pursue’ this is all about to change, added Swan. ‘The UK government has accepted a recommendation in the Hargreaves Report that the Patents County Court… should operate a small claims procedure for intellectual property claims under £5,000.’
Though the images are not identical, the judge ruled that Fielder’s composition of the image, to include such features as the ‘visual contrast’ of the bright red bus and monochrome background, were the photographer’s ‘intellectual creation’.