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.'"

Comments

Misleading to call it "non-copied"

[Overly Critical Guy]

You know, having read the judge's reasoning, the headline and summary for this story are somewhat misleading. Yes, the photograph is "clearly different" in that it's not the exact same photograph, but it is clearly the same compositional idea, with the only practical difference between a difference in angle. Also, the second photo was intentionally made to avoid licensing fees from using the original.

The judge offered his logic behind the decision:

The judge concluded that the claimant (Justin Fielder)'s image is original and that the intellectual creation resided both in the compositional elements of the image and the contrast aspects. Specifically, Judge Birss QC highlighted two visual contrasts: 'one between the bright red bus and the monochrome background, and the other between the blank white sky and the rest of the photograph.'

He also took into account the evidence that Mr Houghton was aware of Mr Fielder's image (the two had previously been to court when they had failed to reach a licensing agreement over Houghton's previous infringement of Fielder's copyright), to conclude the similarities were causally related.

In the end, Birss 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.

In other words, the original wasn't simply a photograph of something but a specifically processed piece of artwork, and the second piece attempts the exact same style and processing. The defendant commercially used the original without licensing it from the plaintiff and was sued by his company, and the second photo was only taken afterward to avoid paying the licensing fee, so the intent of the photo was specifically to copy the original and not borne of parallel-developed artistic expression.

So to say it's a "non-copied photo" is, in my opinion, wrong.

Howeverthe comments to the article also point out that this kind of shot is common: example, example, and example (note that these pictures have no dates provided). The article says alternative examples were in fact brought up in court, but the judge said they worked against the defense because they "served to emphasize how different ostensibly independent expressions of the same idea actually look." But I think they're all a close enough idea that the differences in angle and position don't serve to make them different enough, because the core idea of all the pictures is this specific London red bus in front of a monochrome Big Ben scene.

If it can be proved that there existed images like this before 2006, then the plaintiff shouldn't have won, but apparently, the examples given in court were undated.

Re:Misleading to call it "non-copied"

[Anonymous Coward]

Ideas aren't and shouldn't be protected by copyright. This is a dangerous, if unsurprising, precendent. Big copyright is succesful in their quest to limit creation and people like you will be cheering them on right up until your cheering is ruled to infringe on something or another.

Re:Misleading to call it "non-copied"

[mark-t]

Except for one key fact...

You cannot copyright an idea.

That is utterly incontrovertible. And so yes... he copied something. He copied the idea. But that is *ALL* that he copied. The original photographer does not own a copyright on that idea, he owns a copyright on the photo.

The second photographer did not copy the original photographer's photo. He copied the *IDEA* that the original photographer had.

Re:Misleading to call it "non-copied"

[CrystalFalcon]

It's not misleading in the slightest to call it non-copied for the simple reason that it was not a copy, and that the copyright monopoly only covers direct copies, nothing else.

Yes, they used similar inspiration and similar techniques. But that is specifically not covered by the copyright monopoly, which has always been about protecting a specific expression of a creative idea, and never the idea itself.

For more, see this article on Falkvinge on Infopolicy.

Re:Misleading to call it "non-copied"

[MightyMartian]

The law is nothing. Everything you thought you knew about human cultural transmission means nothing. We are now living in a world constructed completely of lawyers, by lawyers and for lawyers. What a sad, pathetic, worthless place we've made for ourselves, and for what? So some fucking cunt can harass fellow photographers over a fucking picture most people won't even see?

Re:Misleading to call it "non-copied"

[Anonymous Coward]

"Ideas aren't and shouldn't be protected by copyright. This is a dangerous, if unsurprising, precendent."

The idea isn't. The point is that a derivative work is when you look at someone's work and make a similar one that you would not have produced without first viewing the original (at least in the US). If you are a derivative work, then you can be subject to copyright infringement. This has always been the case.

Consider Snoopy. If I look at the snoopy character and draw a similar dog called Smarpy, which isn't quite the same, and perhaps make him a comic book character, is that a derivative work? Sure it is. Same deal for the photo. It is a complete defense in the US though, to prove you never saw the original.

Re:Misleading to call it "non-copied"

[Anonymous Coward]

Yup. Even though what Overly Critical Guy says is quite correct in technical point, the fact is that there IS an absolute line in the sand and this decision crosses it. Its time to start scaling copyright right back to zero, its time has obviously long passed.

Re:Misleading to call it "non-copied"

[Overly Critical Guy]

I'm not "cheering" anything. I'm saying that the photograph is clearly copied from the other on an artwork level--that being the artistic expression comprised of the subject matter, processing, and overall "tone". It's also a matter of fact that it was specifically intended to be a copy of the original.

I mean, if you saw a movie called "Triassic Park" with a logo using the same font as the original and a different angle for the T-rex silhouette, and the same storyline but with different actors and slightly different shots, and a soundtrack that resembled the original but for a few changed notes, you'd still consider it a rip-off of Jurassic Park. At some level, it's just common sense.

Re:Misleading to call it "non-copied"

[erroneus]

Actually, according to the summary, the composition was different as was the angle. It was the subject and the 'style' which were the same.

This is an extremely slippery slope where the arts are concerned. EVERY bit of art owes style, composition and subject matter to other, previous works by other people. This judge has essentially ruled that by copying someone's style and using the same subject, they have copied the work of another. That's a bit problem. It's like "patenting" art.

In order to improve our own art, at times we seek to duplicate the styles of other art we enjoy. As a former art student, I know very well about the application of style in classical arts such as sculpture, painting and sketching. I also know very well about the digital arts where styles and methods used in creating manipulating graphics are often borrowed, simulated and quite often duplicated by simply using the same photoshop filters.

We have had discussions about photography and objects on public display before. It's simply ridiculous to say that images of such objects fall under copyright. And in this case, the use of color on an object while not having color on all other things has been going on for a VERY long time. This technique, I believe was likely born of marketing and advertising drives, is far from new and far from being "ownable" by anyone in particular. The technique is fairly common and fairly simple.

This is a case of a judge simply not knowing how art works and then ruling on it setting up a precedent with huge unintended consequences.

Re:Misleading to call it "non-copied"

[Anonymous Coward]

This has always been the case.

No it hasn't. All i have to say from your comment is that you know absolutely zero about the human creative process. The Beatles mimicked elvis and the crickets. Mickey Mouse is a derivative of Oswald the Lucky Rabbit (with slightly different ears) and from vaudeville and minstrel shows before that. Take any creative work of value-- anything-- music, literature, movies, paintings-- and I can guarantee you it was influenced by an earlier artist whose formative efforts involved watching and learning from whatever came before.

Every creative work, much like scientific advancements, stands on the shoulders of and is influenced by its predecessors. Culture doesn't self-generate spontaneously-- and when it comes to copyright, is the EXPRESSION of the idea in a fixed medium that counts, not the idea in and of itself.

That this work should be found to violate copyright, is in my opinion, nuts.

Re:Misleading to call it "non-copied"

[snowgirl]

The law is nothing. Everything you thought you knew about human cultural transmission means nothing. We are now living in a world constructed completely of lawyers, by lawyers and for lawyers. What a sad, pathetic, worthless place we've made for ourselves, and for what? So some fucking cunt can harass fellow photographers over a fucking picture most people won't even see?

Dude, that's the world Jesus was purportedly born into. Have you seen how highly-observant Jews "haggle" over their mitzvot, and debate them and argue about them looking for essentially loopholes and such?

A world defined by legal red tape is hardly a new invention...

Re:Misleading to call it "non-copied"

[Anonymous Coward]

The point is that a derivative work is when you look at someone's work and make a similar one that you would not have produced without first viewing the original

Congratulations. You just abolished every form of art because every single artist in history did this at least in the beginning when he was still learning. Sorry, no more new artists. Got to protect corporate profits.

Re:Misleading to call it "non-copied"

[hedwards]

I see so you're an expert in art? I've studied photography pretty seriously for years, and I can tell you that there's a lot more that goes on than just capturing what you see. Seeing it is a talent that requires a lot of study, but most photographers, even most nature photographers and some photojournalists, stage the photos. Just because the medium requires a click at the end does not suggest that any less work went into the photo than a comparable painting.

The truly talented can end up going months between inception and creation.

Then again, you're a troll, so who gives a damn what you think.

Re:Misleading to call it "non-copied"

[hedwards]

It's not clearly copied. The only things about it that are in common are the general location and the subject. Everything about it is incredibly unoriginal. Selective coloring is kind of cool, but it's not really justification for granting protection. Neither is cutting away the sky. Sure, it was kind of a dickhead move creating an image that he knew might be confused for somebody elses work, but the two images shouldn't be considered the same for copyright images.

Of course this is the UK and it's somewhat different over there.

Re:Misleading to call it "non-copied"

[snowgirl]

The main difference is that it's no longer just the intellectual elites that need concern themselves with it. People on slashdot do as well.

One of the very serious problems with life in the US, and I suspect the UK as well, is that one is not allowed to plead ignorance even though one would have to be a highly skilled attorney to know where the line is. Often times they don't even know until the courts rule.

Indeed, but that's the problem with every legal system. Being able to plead ignorance about the law means basically that you could get out of any criminal act with just a simple, "oops, sorry, didn't know!"

In general, if you chose to get into doing something, it is well-known that there are laws governing that behavior, and you need to inform yourself about the laws prior to striking out and doing it. Failure to do so indicates a willful ignorance of the law, and not an accidental ignorance of the law. You KNEW that there would be laws, and yet you declined to inform yourself about them.

Re:Misleading to call it "non-copied"

[Darinbob]

But then you can't copyright books; books are just ideas that are written down. Books and music and plays are expressions of ideas. So photographs are also expressions of ideas.

If you duplicate a painting by being extremely close to it as much as possible, in oil instead of latex, isn't that violating copyright? These two photographs are much the same, the second is clearly trying to copy the fundamentals of the original. The original photograph is not just a composed photo of a natural scene, it's been processed specially (red bus as only color in black and white photo).

Re:Misleading to call it "non-copied"

[sjames]

So, you advocate that we stamp out Newton's standing on the shoulders of giants nonsense? It's gonna be a very boring and unproductive century at this rate.

Re:Misleading to call it "non-copied"

[dadioflex]

"Culture" is being removed as an expression of natural human interaction with the ideas around them and being replaced with something manufactured and protected by corporations. Less "culture" and more "cultured", the way you do with slime in a petri dish.

Also, Heathcliff/Garfield.

Re:Misleading to call it "non-copied"

[sjames]

The caution you advocate is literally impossible. Even professional lawyers must go to expensive schools for years, specialize in a narrow area of law (much narrower than the scope of an individual's activities), constantly consult a law library and other lawyers, and for all of that STILL cannot say with certainty if some things are or are not illegal. In other words, even if we were all lawyers and all determined to scrupulously obey the law at all times, we would still see people convicted of crimes. If they can't do it, what chance does a layperson have?

We could apply a reasonable man test to a plea of ignorance. No, nobody at all believes killing someone for a stick of gum is legal. No, nobody believes it's OK to rob the liquor store on alternate fridays. Yes, I can see why you might not realize that it's illegal to whistle Dixie after 3 PM on a Sunday if you're wearing sneakers.

It simply is not ethical to expect people to obey a code of conduct that is too complex and voluminous for them to know and understand.

Re:Misleading to call it "non-copied"

[1u3hr]

The idea isn't. The point is that a derivative work is when you look at someone's work and make a similar one that you would not have produced without first viewing the original (at least in the US). If you are a derivative work, then you can be subject to copyright infringement. This has always been the case.

Bullshit. Look for instance at TV shows: How many CSI-clones are thers? How many "supernatural detective"? How many Twilightish vampires? How many have been sued for copyright infringement?

How many old SF books, stories and movies did Star Wars rip off? But lack of originality isn't infringement. Frank Herbert didn't copyright "Mystical warriors on desert planets" with Dune.

This red bus on the bridge is clearly inspired by the original. But the "original" didn't invent the concept either. Whole moves have been made in that style (Pleasantville, eg).

Re:Misleading to call it "non-copied"

[repapetilto]

You would do it anyway because you enjoy it. If not you, someone like you but retired could probably figure out the same thing. To me, at least, the correct argument is that copycats profiting off your work that you shared freely is bs.

If you wouldn't do it out of enjoyment, it probably sucks compared to what the guy who did it for himself would do. You should want people to copy your art, if not you are doing it wrong.

Re:Misleading to call it "non-copied"

[Anonymous Coward]

Star Wars is BSG. (Seriously, tell me Rebel technology is not based off the Viper.) Lord of the Rings is the Norse Eddas. Babylon 5 is Lord of the Rings in space with giant energy squids instead of wizards. Star Trek is every Western ever created, in space. Firefly is Cowboy Bebop. Slashdot is Usenet with moderation. Google is Yahoo is Alta Vista. KDE is Windows. Windows is Apple. Apple is that thing what was from Xerox. Linux is Unix. AMD is Intel. C++ is C after a pipe of crack. PHP is Perl/Apache::ASP.

Copyright Infringement is NOT piracy; piracy is laying alongside Chris Dodd's yacht at pistol shot, thumping in three brisk broadsides and boarding in the smoke.

Re:Misleading to call it "non-copied"

[Jafafa Hots]

It actually IS a relatively new idea.
I mean, it is a bit over 100 years old which may SEEM old, but it's a newborn compared to the system it replaced.

The system that IP law replaced, which gave us all art, all music, all culture, all language, all technology right down to bows and arrows and rock hammers and agriculture and the loin cloth - everything that got us out of caves and which separates us from the other great apes, is over 100,000 years old.

This new upstart idea, Intellectual Property is replacing the time-tested and seemingly obvious concept (you can't "own" an idea) that has proven over 1000 centuries to enrich everyone and essentially create what we consider to be "humanity," with a virtually untested (results are mixed so far) system that promises to enrich... well, a tiny fraction of a percent.

I mean, I KNOW it may sound like a great idea - replace the system that gradually dramatically increased the quality of life of most of the billions of humans who have ever lived with one that exploits billions of humans for the enrichment of a few... but oddly enough although the new system has worked as advertised and created a few multibillionaires and hundreds of millions of exploited people, the overall satisfaction rate is plummeting.

Seems oddly counterintuitive, I know. I mean, who WOULDN'T want to work long abusive hours locked into a factory for pennies until you are driven to suicide so you can make some other guy rich?

How is that not a great deal?
There's even the possibility that if you save for a few years before jumping off the factory roof, you might be able save up enough to buy a used, outdated version of the product you've personally made tens of thousands of!

Re:Misleading to call it "non-copied"

[IrrepressibleMonkey]

Read the article. Read the full judgement that is linked in the article. Pay specific attention to the part when the Judge sums up his findings on Independent Creation and the fact that the defendants dropped any claim that their image was designed independently.
Jesus, for a guy who doesn't care what I think, you seem a little wound up...

Re:Misleading to call it "non-copied"

[rollingcalf]

Copyrighted music is different because you're actually creating an original sequence of sound, whereas with photography of public domain objects you're capturing something that's already there.

If you're going to mention music, a better analogy would be recording something musical that is already in nature, like the mating calls of birds. Somebody else going into the same forest to record the same birds shouldn't have to be blocked by copyright just because somebody else was there to record it first.

Re:Misleading to call it "non-copied"

[hrimhari]

- Taking a picture of London's double-deck red bus: common place.
- Taking a picture of London's double-deck red bus in front of the Big Ben: common place.
- Doing selective desaturation with Photoshop: common place.
- THINKING about taking a picture of the red bus in front of the big Ben and selectively decolorizing the picture: common place (only takes a semi-professional photographer).
- But DOING it is now Copyright Justin Fielder, thank you very much.

[Insert your worst insult here] you!

On further review, bullshit

[SuperKendall]

I was thinking, I could see the point - if you nearly duplicated the angle, and used a similar treatment then yeah I think a photo could be close enough for infringement even if not the same.

But looking at the actual shot, the angle is totally different. The "treatment" is simply the (by now VASTLY overused) technique of leaving one object in color with the rest greyed out. Come on! That is in use everywhere as a common element, and I'll warrant it was even in use a fair amount before the original was taken. If ever there was a call for some kind of copyright "prior art" this is it.

Fine all the tourists.

[Anonymous Coward]

I bet big ben has been photographed from nearly every angle, under nearly every lighting condition and season. If this holds up, they should just issue tickets to anyone holding up a camera in front of it. That and station police at every location marked as a scenic wayside.

Re:Actual 2 photos

[Digital Vomit]

As unbelievably stupid as this ruling is, actually seeing the two images side-by-side adds an entirely new dimension to the sheer idiocy.

They will ruin copyright

[mbone]

10 years ago I said that the people pushing copyright everywhere would eventually wind up with copyright nowhere (i.e., with no copyright at all, due to a total loss of public support). This sort of crap does nothing to change that feeling.

WHERE DOES IT END!

[Frosty Piss]

So what you are saying, OCG, is that attempting to avoid a licencing fee by using a similar but different piece of "intellectual property" should be illegal?

Apple Computer agrees with you. As you know, they own flat glassy tablets with rounded corners. Don't try to avoid patent licencing by making similar but different tablets...

The red bus thing on grey and System V is...

[AHuxley]

http://www.ikea.com/us/en/catalog/products/40152586/
Seems like a lot of artists should get some legal PO Box in the UK and a good UK lawyer. From patent trolling to art trolling?
As for the US Unix is Linux case, if only they had thought about UK law and followed the libel tourism trade :)
"When you go to the bookshop and look in the UNIX section, there's books on 'How to Programme UNIX' but when you go to the Linux section and look for 'How to Programme Linux' you're not gonna find it, because it doesn't exist""

Uh oh. Big Trouble

[multimed]

So all the people who have taken photos of people "holding up" the Leaning Tower of Pisa are in for a world of hurt, huh?

I'll bite

[slew]

You don't get it (nor do many of the folks on this thread).

Let's put this into other terms. Let's say there is a movie (say the matrix for argument's sake), and someone watches the movie in Brazil and says, "hey, I like that movie, I'd like to license that movie and sell it in Brazil". Then they try to negotiate a license to distribute the movie, but can't come to an agreement on price. Then they get another studio to make a movie about a future world where machines take over and use people as batteries and trick them into not committing suicide by putting them in a virtual reality world. Probably won't get sued. However, if they make the same movie and put in bullet time special effects into the movie and the script has similar scene order and shot perspective and they end up calling the movie "The Tensor", many folks might think they crossed the line (maybe).

Why? it would have copied so many aspect of what made the Matrix, the Matrix, that it is considered a derivative work that lacks any transformativeness. If they, however, added some artistic element (say like make it a parody like space balls vs star wars), such that the work could be considered a new work under copyright law. Similarly, if the movie had the bullet time effects, but say was a movie about terminators, well, that's not the same movie. Or if the movie didn't have digital rain, or bullet time effects, but was say a movie with a plot like say dark city, that had a different effect say like moving buildings... etc...

It doesn't have to be an exact copy to be a "copy" under copyright law. Otherwize, someone could hire an army of people from some 3rd world country, give them the linux source code after the pre-processor and have each person memorize a function and type in another version from memory with variables converted to camelCase reverseHungarian and all the for loops turned into while loops and maybe some switch statements converted to if/else, run it through a pretty-printer and re-intepreted by a few code cleaning scripts and auto-doc tools to make some comments, and voila! a non GPL version of Linux could emerge! NOT! That work would also likley be inspired enough by linux that it wouldn't pass the test of being a new work (unless say they made it a microkernel instead of a megakernel which would be "new" or maybe "old" depending on your point of view)

Re:Not the same compositional idea

[snowgirl]

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 also the special case that he redid the photo just to avoid a licensing lawsuit...

It's the worst example of how not to do reverse engineering: infringe someone else's copyrights at first, then when you're called out on it, go out and reverse engineer and reimplement without a clean box...

It is highly unlikely that the defendant ever would have been in trouble, if he had not previously infringed fully on the copyright, by reproducing the original without permission.

You got do be kidding me

[devent]

Now a freaking IDEA is protected under copyright? Great, open the gates for all the lawyers, and people wonder why we hate them so much. No need for a patent or trademark anymore, just claim you have the copyright on the whole process how you did something (which are clearly what patents are suppose to cover).

"its appearance is the product of deliberate choices and also deliberate manipulations by the author," and concluded that those aspects had been copied.'"

But those aspects are just how he did it. This is not a work of art, the same way as if I carper a table, the nailing and sawing are also "deliberate choices and also deliberate manipulations", but they cannot be copyrighted.

Fuck copyright. I never will abid to the stupid laws of copyright if I can get away with it. Sorry for all the artists that I will not give my money, but as long as the copyright laws are as such I will not recognize them. Maybe you (the artists) should get together and press to make them moral again, than I will concider to recognize them again.

Re:photograph mostly black & white except for

[reub2000]

If you want examples of mostly black & white photographs with a touch of color, then you need to go back to the 19th century:
http://commons.wikimedia.org/wiki/File:Dubbelportr%C3%A4tt,_Sven_Alarik_Bergstr%C3%B6m_och_hans_hustru_Flore_Jos%C3%A9phine_Constance,_f._Pontus_-_Nordiska_Museet_-_NMA.0052773_1.jpg

Infringement or counterfitting?

[Sigg3.net]

The precedent here is that all (not very creative) artists who emulate someone (in awe or poor taste) have done something illegal. This is wrong.

Society will punish these artists "socially" (=bad reputation) as we have always done, and not through legal action.

Good taste and not lawsuits should dictate our behaviour.
People pay millions for "the original" for the right to say "but this is the original", which makes us marvel at the work, study the details aso. While anyone can get a copy online or at Ikea..

How will this precedent fare with stock photography, for instance? Or Disney's fairy tales that are clearly inspired by Old world tales?