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Non-Copied Photo Is Ruled Copyright Infringement
An anonymous reader writes "A UK judge ruled that a photograph inspired by another photograph, but clearly different from it, infringes the original photo's copyright. The two photographs were shot in the same location, have the same subject, and use the same distinctive post-processing treatment. However, the angle and composition are different. From the article: '[The judge] said a difficult decision hinged on a "qualitative assessment of the reproduced elements." He defined Fielder's image a "photographic work," as distinct from a simply a photograph, in that "its appearance is the product of deliberate choices and also deliberate manipulations by the author," and concluded that those aspects had been copied.'"
Yes, the images are arguably similar. But there is absolutely no merit whatsoever to the claim that one would be a copy of the other, thus violating the copyright monopoly. What the judge has done here is to set a precedent that states that the monopoly does not just cover the creative work, but extends to a general creative idea, which completely shatters the traditional notion that the copyright monopoly only covers a specific expression of an idea, and never the idea itself.
So what’s the big deal, then? In this case, they sought to recreate the image and took a similar one. Why is that not a violation of the copyright monopoly?
Because that’s exactly how you do it if you don’t want to pay a license fee on the original terms. You create a similar work yourself, entirely by yourself, and compete. It’s the whole damned idea.
Article by Falkvinge on this verdict.
Also, the second photo was intentionally made to avoid licensing fees from using the original.
original, you say?
The judge is an idiot, or maybe he doesn't go much to the movies. The compositional idea isn't original at all. girl in the red coat
I think to say the sky/building contrast was a choice is wrong; That's simply a byproduct of B&W conversion in a place that has uniformly grey skies a lot of the time. Perhaps if the artist had done extra work to get the sky that color but having done some B&W conversions I very much doubt that is the case.
The one actually coped element is simply the treatment of the red bus in color contrasting with everything else. But that practice was in use well before 2006.
The rest of the work compositionally speaking, is totally different - the relation of the bus to the buildings, even the relation of people to the bus or the use of people within the image is totally different.
I guess he just had a really inept defense because this judgment should not have ended up this way based on that image.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
There is significant precedent in UK law that if one takes a "significant portion" of the original work then it constitutes copyright infringement. This provision exists to prevent someone from circumventing infringement by making trivial differences and then claim they haven't directly copied a work. This case absolutely does not extend to the protection of an idea. For copyright infringement to be found, one must demonstrate a causative link between the original work and the alleged infringing work; hence, independent creation of (in this case) a photograph wherein it can be demonstrated that the defendant was unaware of the original work is not an infringing act. Those are not the circumstances of this case. The defendant was aware of the claimant's work; in fact, there had been a licensing disagreement concerning exactly that work which was claimed to be infringed. The relevant case law for this type of thing is Bauman v Fussell, Krisarts v Briarfine, and for the "intellectual creation" reasoning (brought in to harmonize with existing EU law and somewhat overriding the previous "skill, labour and judgment" basis which used to be UK law), see the Infopaq cases.
This is a bit like music, in that I can write a tune that has a similar melody to someone else using totally different instruments and if it is too similar the original composer can sue me and claim royalty payments. This has been the case for years.
The Beatles are a great example in fact. The music and lyrics to Come Together? Partly ripped off from Chuck Berry. They settled out of court in the end but there was a lawsuit. They allegedly even tried to slow it down to make it more original.
This is not a new idea in copyright of artistic works I am afraid.
Just because it takes lot of work and effort does not mean you deserve a _monopoly_ on the _concept_.
A bricklayer spends lots of time putting bricks on bricks to build a house, that should not give the bricklayer the right to prevent others from building a house by putting bricks on bricks. Even if it's a house with the same colour scheme (but different shape).
So what is covered? Does this ruling mean that any picture with "coloured iconic object in monochrome background" is now infringing?
I'm not photographer, but it seems silly for any photographers to be happy about this ruling. In my unlearned opinion what this ruling means is that just taking a picture of a famous monument that's been processed in some (not too trivial?) way would be infringing on any previous similar photos. You really sure you want that? You might not be able to do much non-infringing professional or "value-add" photography, or maybe if the judges get more insane, you might not be able to do much noninfringing photography of popular objects/sites.
The main difficulty is not ideas and concepts, the difficulty is coming up with a high quality result from the original idea. So giving a person a monopoly on a concept seems ridiculous. I can have plenty of ideas on photography - that does not mean I can produce a good "photo".
In fact to me the two photos are very different other than the colour schemes: one has sky, skyline, stairs, bridge and river. The other is sky, famous building, the bus on a long road and the bus is "smack in the front". As a result In the latter the bus is more prominent, more of a main subject, whereas the former, the bus is a highlighted object but in a more varied background.