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"

[jythie]

Not likely since this was a UK court decision and DMCA is a US law.

Though it is not unusual for US courts to reference decisions in the UK or Europe (since the rest of the world does not seem to legally exist) so I would not be surprised if this comes up domestically....

Re:Misleading to call it "non-copied"

[polymeris]

Also, the second photo was intentionally made to avoid licensing fees from using the original.

original, you say?

Re:Misleading to call it "non-copied"

[martin-boundary]

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

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"

[Dahamma]

And since it's estimated that less than 10% of any ideas are original, according to this judge 90% of the population is guilty of copyright infringement!

(and I made up the entire statement above without any reasonable proof or evidence, but I'm sure someone has thought it before so don't blame me, I'm just quoting someone else's idea...)

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"

[Anonymous Coward]

Apples and oranges. As pointed out below by someone else, photos are barely copyright-able at all, because they're simply a recording of something. Your example of Snoopy is something entirely different. Furthermore, even in derivative works fair use generally applies, meaning it's still OK.. The main reason you can't reproduce things like Snoopy is because they're trademarked.

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"

[Epimer]

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.

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"

[hedwards]

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.

Re:Misleading to call it "non-copied"

[Golden_Rider]

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.

It looks similar, but the point is that it is not clearly copied from that particular photograph. Do a google image search for "bus big ben", and you will see HUNDREDS of photographs which look similar. So I do not know why anybody here should be able to copyright the "look" of these photographs...

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"

[reub2000]

A derivative work is taking something and changing it, like translating it into a different lanugage or creating an abridged version. Taking ideas, and creating something that is stylisticlly similar is called art. All of the impressionists saw what monet could do with a few tubes of paint and what looked like sloppy brush strokes and created similar work. The heavy metal bands listed to steppenwolf singing about "heavy metal thunder" with loud and distorted guitars, and thought they could make something even louder. Such is art.

Besides making a photograph mostly black and white except for a single object isn't exactly creative. The idea goes back to the days of the daguerreotype when peoples faces where hand tinted.

Re:Misleading to call it "non-copied"

[alci63]

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.

Yeah. Cool news for Plato's descendents, as pretty much everything in western thinking was inspired by its work. Unless they are sued by Socrates rights owner of course.

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"

[Darinbob]

This original photo in question is not just a recording of something. Have a look at it. It's been greatly modified from what the camera actually recorded.

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"

[dadioflex]

You know, I think I've gotten my head around this now. If you happened upon the scene, post-processed it the same way (using standard Photoshop tools) and presented it as your own idea then you'd be perfectly okay to do so. What happened here was the two parties had a prior arrangement and an effort was made to deliberately copy the style of the original image to avoid paying licensing fees, in the opinion of the judge. I'm losing faith in copyright on a daily basis, but I actually get this decision. Don't agree with it so much, but I don't think it's as crazy as some people are making out.

Re:Misleading to call it "non-copied"

[madprof]

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.

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"

[hairyfeet]

If I had mod points you'd be at +5 because you nailed it. What this guy did was no different than a Romex watch, he saw a picture he liked and when he couldn't get the guy who made it to basically hand it over he produced a knockoff. While i believe copyrights and patents need serious reform this is actually a textbook case of what they were originally meant to do, protect someone from cranking out knockoffs and stealing their work for nothing. It isn't like he had never seen the other pic and simply stumbled over the same idea, he knew about it, tried to buy it, didn't like the price and decided to rip it off. open and shut case IMHO and I applaud the judge for having common sense.

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"

[Cant use a slash wtf]

So, pretty much every newly produced song in the last 100 years should be illegal?

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"

[bruce_the_loon]

Strawman argument. You can copy an artwork, you just can't make a profit from copying if the original is still in copyright without the owners permission.

Re:Misleading to call it "non-copied"

[91degrees]

I hope my book about a young boy who goes to a school for wizards, meets a red headed best friend from a large family and a bookish girl with wild hair, then defeats the evil wizard at the end does well. When does it violate J K Rowling's copyright?

I guess the argument is whether the second photographer would have created the work without seeing what the first photographer did, and whether there was any different creative decisions, (i.e. did he actually copy) and whether this would reduce the value of the work of the first photographer.

To be honest, I disagree with the judge here. I think the photographs are sufficiently different, but I can see the reasoning.

Re:Misleading to call it "non-copied"

[IrrepressibleMonkey]

It looks similar, but the point is that it is not clearly copied from that particular photograph.

You didn't read TFA, did you? The Judge was able to determine that the image was clearly copied from that particular photograph precisely because that particular photograph was being used by the defendant without permission until a court ordered him to pay licensing fees. Only then was the new photograph was created.
Group think on Slashdot is reaching new levels of stupidity. This isn't a case of artistic freedom, this is about using someone else's art to sell tea and refusing to recognise their efforts.

Re:Misleading to call it "non-copied"

[SecurityTheatre]

See, does copyright law really specify the intent of the person who violates the copyright?

Are you really claiming that this is important? If I saw the same photo and merely thought to myself "cool idea, i should try it" and came up with the same thing... that this is somehow different?

I'm really angry about you calling this groupthink. I don't fucking care what the OP or the GP or whoever said... I THINK that it is BS. I don't frankly care what YOU THINK.

Re:Misleading to call it "non-copied"

[TaoPhoenix]

Nice recall on Pleasantville - I liked that movie. Earlier in the thread I also noted the TV series John Doe.

But I like your other point even more. It's becoming like a small town ticket-revenue cop hanging out instead of fighting/solving crimes. "Oh, the 5th guy to use a technique is infringing the copyright of the fourth guy to use the technique". Persons/Corps #1-3, where do they factor in?

So what this decision does is not only do we get "pure copyright" issues, we also get the situation where no/fewer artistic movements can grow. They BARELY allow public domain, which I'm sorry to say is generally creaking with age by now (except for the additions a few enlightened post-modern geniuses) and I recall they even want to yank that away.

Re:Misleading to call it "non-copied"

[C0R1D4N]

Star Wars (1977) Battlestar Galactica (1979)

Re:Misleading to call it "non-copied"

[TFAFalcon]

So why stop them from using the NEW photograph? Fine them for 200% of the income they made selling the ORIGINAL photo, but the new one is something they made themselves.

Re:Misleading to call it "non-copied"

[silentcoder]

>But then you can't copyright books; books are just ideas that are written down

Bullshit, a book is an EXPRESSION of an idea. What you can't copyright is somebody writing a book with a similar plot and characters.
Or do you think every vampire book after Bram Stoker's Dracula violates copyright ? As much as I'm in favor of banning Twilight -that is NOT the way to do it.

>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?

No, it isn't. In fact it's a required practice in artschool to learn to paint "like the masters" in this manner. Of course if you then claim your version IS the original you are guilty of a crime and that crime has nothing to do with copyright, that crime is "fraud".

>These two photographs are much the same, the second is clearly trying to copy the fundamentals of the original

So what ? Every photographer looks at his favorite photographers and try to reproduce their fundamentals, it's how we learn. The the better ones take what they learned, mix it in with other lessons from other masters and some of their own ideas and come up with something unique. Most of them would love nothing more than to think that some day, some other young photographer will study their photos and try to replicate their techniques. So common is this that some of the more well-known processing styles of famous photographers are built into image processing programs like Gimp and Photoshop so that photographers can see how their pictures would have looked with the same effects applied (or even use them with those effects).
The style of "one item in color" is not original in the least, it's a fundamental archetype in photography. One of the basic styles every photographer learns early on because it's so powerful. I've used it for portraiture years ago, and I never had any illusions that the idea was original - but I could try to be original in my expression of it. In fact the book "Gimp for photographers" includes a chapter teaching exactly this technique as the author considers it a vital skill every photographer OUGHT to have !

Re:Misleading to call it "non-copied"

[Ihmhi]

And amazingly, we seem to be returning to the patronage model.

Unless you were an artisan (potter, blacksmith, etc.) the masses couldn't really afford things like paintings or sculptures. The royalty, wealthy, and churches ended up paying these men and women for their services.

Nowadays, we have a similar situation where people are acting as artists and performers and leaving out a digital chip jar. Now the whole world are the patrons. The model has been very successful if you have a quality enough product - just look at all the webcomics where people live 100% off of the donations they receive, or the ones who segue into merchandising.

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"

[noodler]

"So some fucking cunt can harass fellow photographers over a fucking picture most people won't even see?" Did you even read the story or the judgement? It's about one company making a photoshop. Then another wants to use it for their own brand but doesn't want to pay licensing fees. Then this second companie goes on to make a somewhat different photoshop that looks a lot like the original just to circumvent paying these fees. The story has very little to do with everyday fellow photographers. And it is, in fact, not about photographs. It is about photoshops and companies using them.

Re:Misleading to call it "non-copied"

[UglyMike]

Yes, Disney was the artist of both characters, but That is immaterial. (I mean, who gives a f*ck about the artist when money is involved) The point is that Oswald's copyright did not belong to Disney when he created Mickey, an Oswald look-alike with round ears. So according to this, Mickey is clearly a rip-off of the copyrighted Oswald image and Disney should have been sued into the ground for STEALING SOMEONE ELSE'S PROPERTY!!

Re:Misleading to call it "non-copied"

[Gideon Wells]

Not the first time. Look up Kimba the White Lion. Disney had Pinochio created and in the can waiting to go public at the first possible moment the original copyright on Pinochio faded to public domain.

That's Disney's general M.O. for self produced movies.

Re:Misleading to call it "non-copied"

[MattBecker82]

Linux is Unix.

However, GNU's not.

Re:Misleading to call it "non-copied"

[asc99c]

If you read TFA (which admittedly, also very nearly misses the point) you'll see the point is this photo isn't just a recording of something. There are certain aspects of it chosen by the artist - the white sky, the monochrome background, the red bus - which therefore can be copyrighted. And furthermore, the defendant had photographed the second image especially to avoid having to pay a licence for the original image.

While the second image isn't copied either digitally or by photocopier, it is still a copied image. If the defendant had the idea for the image independantly, it would be arguable, but in this case it is well documented that he did not.

Re:Misleading to call it "non-copied"

[AmiMoJo]

The key difference here is that there was a previous history of the two parties being unable to agree over royalties, so the defendant decided to simply copy the accuser's new work. Not be inspired by it to create something original, just to copy it to avoid paying licensing fees.

Now, I'd still say it is the wrong decision because that sort of thing happens all the time in other industries, e.g. fashion and TV. But this really isn't a case of one artist being inspired to produce something new an valuable.

Re:Misleading to call it "non-copied"

[jmcvetta]

So let's say someone asks to buy a copy of my super deluxe "hello world" app. I quote him $1,000,000/yr license fee. Finding my price excessive, he writes it himself. If I were English could I sue him now?

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"

[minio]

Those squids in Babylon5 are inspired by "Elder Thing" from Lowercraft, according to Straczynski.

Re:Misleading to call it "non-copied"

[ehlo]

I think that the main point of his argument was not to offend anyone but to establish the defenses to copyright infringement, as evidence by his concluding statement: "It is a complete defense in the US though, to prove you never saw the original.". There will be a legal test to determine whether or not you are guilty and never having seen it accomplishes that, hence a complete defense.

Re:Misleading to call it "non-copied"

[goldspider]

You might also want to consider the amount of technological progress that has taken place over the last 100 years and compare it to the last 100,000 years.

I'm not saying the system is perfect, or even that its current manifestation serves the public particularly well. But you can't simply disregard the entire concept of Intellectual Property and pretend that it hasn't encouraged (and rewarded) innovation.

Re:Misleading to call it "non-copied"

[Bill_the_Engineer]

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.

Actually it's a bit over 300 years old, the earliest copyright law that comes to mind is the British Statute of Anne 1709.

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.

You only assume this to be true. Aristotle and Plato purchased books. The Code of Hammurabi (1772 BC) is the earliest recording of laws that included trade. You only assume that man was altruistic when in fact we owned slaves (or were slaves). For all we know an individual disgruntled over someone claiming his work as their own was dispatched quickly with a rock, club, or bow and arrow.

Besides societies evolve...

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?

Yea because the Egyptian slaves constructing the pyramids were better off.

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!

Again let me introduce you to a very very old concept called slavery.

Re:Misleading to call it "non-copied"

[imakemusic]

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?

How about if you animate it and call the dog Brian?

Re:Misleading to call it "non-copied"

[Savage-Rabbit]

Lord of the Rings is [based off] the Norse Eddas.

I think any threat of copyright retribution on that one expired centuries ago when Snorri Sturluson's great, great grandson Throgrim the Skull Splitter died from a burst bladder after a particularly lively drinking binge with his berserkers in the local mead hall.

Re:Misleading to call it "non-copied"

[LurkerXXX]

Aristotle and Plato purchased books.

Of course Aristotle and Plato purchased books. Because some scribe had to spend a long time laboriously copying the original. They couldn't just download a copy off the net.

Did the original author get a cut of their purchase price? That's an entirely different question which would be relevent to the discussion, but which you don't know the answer to.

Re:Misleading to call it "non-copied"

[metacell]

You didn't read TFA, did you? The Judge was able to determine that the image was clearly copied from that particular photograph precisely because that particular photograph was being used by the defendant without permission until a court ordered him to pay licensing fees. Only then was the new photograph was created.
  Group think on Slashdot is reaching new levels of stupidity. This isn't a case of artistic freedom, this is about using someone else's art to sell tea and refusing to recognise their efforts.

But the defendant's intention shouldn't make any difference. It should be obvious *from the photographs themselves* that they're derived from each other.

The law isn't there to force people to pay licensing fees. It's perfectly legitimate to avoid licensing fees by making your own photograph of the same subject. The law is only supposed to stop photographs which are so similar, they must be directly derived from each other.

Re:Misleading to call it "non-copied"

[Anonymous Coward]

the lion king is just hamlet WITH ANIMALS

Re:Misleading to call it "non-copied"

[Hatta]

Before too long, there won't be any choice but patronage. Increasing wealth inequality will leave the lower class with nothing to spend on entertainment.

Re:Misleading to call it "non-copied"

[Svartalf]

You can't Copyright an idea. Only the EXPRESSION thereof.

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!

Re:Misleading to call it "non-copied"

[TheLink]

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.

Re:Misleading to call it "non-copied"

[jdgeorge]

Oh.... So the photograph should enjoy patent protection, rather than copyright?

Re:Misleading to call it "non-copied"

[UnknownSoldier]

>> 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.
> Actually it's a bit over 300 years old, the earliest copyright law that comes to mind is the British Statute of Anne 1709.

And people seem to forget it was PUBLISHERS that were the driving force behind copyright because they didn't want other _publishers_ from selling public works !

Copyright, originally, was _never_ about stopping other authors who have the same idea -- only to stop other _publishers_ from DISTRIBUTING works (and thus PROFITING.)

Re:Misleading to call it "non-copied"

[Toze]

To use slightly more widely recognized examples of "real art," which might speak to the luddite, Michelangelo's Creation of Adam in the Sistine Chapel was a copy of Lorenzo Ghiberti's bronze casting of the same theme in the Gates of Paradise.

Re:Misleading to call it "non-copied"

[tehcyder]

To me, at least, the correct argument is that copycats profiting off your work that you shared freely is bs.

Why? If you think everyone shold just share everything freely, how can you stop someone from using that to make money? That's right, you'd have to have copyright laws of some description.

Just because the US has decided to allow Mickey Fucking Mouse to be copyrighted until the eventual heat death of the universe doesn't mean that the whole idea of copyright is wrong.

Re:Misleading to call it "non-copied"

[gr8_phk]

Also, there is a big difference between "taking a photo" and "taking a photo and using it to make money."

No, no there is not. Can you take photos of the pages of a book if you're not going to sell them? No. Buildings are not copyrightable in the US. In Canada, I was going to take a picture of my wife in front of a fountain inside casino windsor and was asked to put the camera away due to copyright. You really seem to be in with the copyright lobby. Let me just ask a simple question:

Is is OK to go to London (stupid American, I think that's where the photo in the article is from), stand by those stairs (or even the side of the road - the shots are from very different angles and with different lens), set my camera to "black and white -except red" and take a picture of a bus?

And now some extra questions:
Can I sell it? Can I get a large print and hang it on my wall? Can I set the camera to yellow and wait for a taxi? In new york? Where exactly IS the line that this guy is supposed to have crossed?

Re:Misleading to call it "non-copied"

[kenboldt]

I find it hilarious that your generic Google image search managed to support your point so unbelievably well. The second result that I saw was this photograph, which is of a "London Bus photographed in the mid 1990's in north east London, highlighted in full color reproduction against a black and white background"
http://www.zazzle.com/london_bus_spot_colour_on_black_white_background_card-137838509666484240

It just makes this ruling by the judge absolutely insane.

Quick, give me a copyright on "a photograph of a person's face where they are the central subject and both the foreground and background are out of focus"
JACKPOT!

Re:Misleading to call it "non-copied"

[DarKnyht]

And to further that line of thought, the issue was that the second person was using the first person's photo without paying copyright. When he was sued, he went out and produced a photo as close to the original as possible to avoid paying licensing fees. So the intent has a lot to do with the ruling.

Re:Misleading to call it "non-copied"

[ChrisMaple]

If you want to claim that the composition and post-processing of a photograph are copyrightable that's very close to putting yourself out of business since someone else developed those methods and you learned from them.

Learning something in class, particularly things that have been known for decades or are explicitly public domain or are obviously not subject to legal restrictions, cannot reasonably be considered things you can't do in plying your trade. That's probably the main reason you took the class, to learn the techniques. The same applies more obviously to things you figure out on your own. However, a unique postprocessing technique, new, inventive, and sufficiently complex, producing a wholly unprecedented visual experience, should be able to claim some small protection for a short time. The photo in the article doesn't qualify.

Re:Misleading to call it "non-copied"

[Dog-Cow]

The judge determined that the purpose of the infringing photo was to recreate the original photo. If the original is copyrighted, the second is a derivative work, by intent, if not through PhotoShop skills.

Why are so many on slashdot completely unable to realize that Judges are perfectly within their rights to judge intent, as well as mechanical actions taken? The law is not a computer program, no matter that you want it to be.

The Judge Wears a Wig that is Copied From Others

[itsybitsy]

without their permission, toss the judge in the Thames along with his ruling.

Actual 2 photos

[Frankie70]

Link here

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.

Re:Actual 2 photos

[Anonymous Coward]

That's a PDF link. Here are the photos linked in the article: http://3.s.img-dpreview.com/files/news/1166562748/Fielder.jpg

Re:Actual 2 photos

[justforgetme]

That's what happens when you let monochrome/boring people rule over domains they haven't
got the slightest clue about.

No, seriously anyone who understands photography (or art) will very clearly tell you that those
two pictures do not represent the same thing.... Damn justice! You can do better than that!

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:Fine all the tourists.

[hedwards]

I thought common practice was to arrest them on terrorism charges and hold them until they're no longer interesting.

Re:Fine all the tourists.

[Beryllium Sphere(tm)]

http://en.wikipedia.org/wiki/Eiffel_Tower#Image_copyright_claims

The MPAA and Porn will save the day.

[OzTech]

The film and porn industries won't sit by and let this one survive because it will put them all out of business overnight.

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.

This is how you do it. It's the whole damned idea.

[CrystalFalcon]

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.

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...

Re:WHERE DOES IT END!

[snowgirl]

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...

... "patents" are different from "copyrights". Yes, they are both intellectual property, and yes they both have problems. However, in the case of patents, you are allowed in no way to reimplement something in order to avoid licensing fees. With copyright, as long as you had no access to the original material, you are allowed to reimplement an idea.

It's kind of already well-known in the F/OSS world that if you should separate your reverse engineering work from the reimplementation work, where the reimplementors are working solely off of design documents that are completely absent of code by the reverse engineers. It's called "clean box" reimplementation, and it's the safest way to ensure that your reimplementation does not infringe upon someone else's copyrights. Because if the person performing the reimplementation has access to the original assembly code, they might just get lazy and copy some assembly instructions rather than actually code the boring stuff out.

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""

Apparently you can copyright ideas now.

[flimflammer]

This judge should be slapped.

Re:Apparently you can copyright ideas now.

[Anarchduke]

I already had that idea. I am now going to sue you for infringing on my entirely original idea of slapping the judge.

Not the same compositional idea

[SuperKendall]

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.

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.

The Judge is an idiot

[Anonymous Coward]

"a specifically processed piece of artwork"

There's no such thing, he had no IP rights to the 'partial desaturation' technique, there is no special right to using that technique on some scenes. The judge here is trying to extend copyright to something it doesn't cover.

Photography can and always was at the fringe of what could be copyrighted, since its just a mechanical record of a fact. What the judge is claiming is that by applying a processing technique to that fact (which the guy had no special exclusive on), somehow creates something more. He then goes on to further extend that to say it covers a class of similar photographs.

i.e. if X is his copyright, copyright law says infringement = X

Judge is saying that X+Y creates a right (X+Y-0.1) Infringment (X+Y+0.1)

However the only thing that could extend photography copyright into a CLASS of similar images is the 'Y' and Y is zero, he has no special right to that technique and its a common technique, Y is zero.

In doing so he is devaluing that technique. It would be like I invented a super machine, patented it, and the first user claimed that applying that to it's purpose created copyright and he holds the copyright, ergo I cannot profit from my invention!!

So that technique is reduced by this decision.

This should and will be overturned on appeal. It's a garbage decision. The judge should be ashamed, idiot.

Re:This is how you do it. It's the whole damned id

[Anonymous Coward]

The common law rule for photographs is well known and straightforward, and is the same in the US and England. The three elements are 1) RENDITION (angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques, etc); 2) TIMING; and 3) ARRANGEMENT (manipulation of the objects in the scene). None of these elements are necessary, nor are they individually sufficient. But this is your starting point. Nothing in that case is even remotely shocking from a legal theory perspective.

It's also worth noting that the touch stone of copyright is originality. It doesn't matter if your photograph looks exactly like another if you in fact had never seen that other photograph. But originality matters because copyright does extend to the "idea" of the work. In other words, when lawyers say that copyright covers "expression", they don't just mean the physical work, but the abstract, mental expression. The idea/expression dichotomy isn't about real versus conceptual. Both are conceptual. The different is fundamentally one of degree. If your mental expression derives from someone else's, and you fix that expression into a physical work, then you've violated the copyright. Right or wrong. This is very basic copyright law.

The reason why you don't see more of these photograph cases is that the claimant has to prove other elements, too, including similarity, actual copying (at a minimum showing that the violator had access to the other work), and originality in the claimant's work. This isn't very easy, especially for photographs lacking the third element of arrangement. Note that it appears to have had the first element (rendition) in spades.

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:I'll bite

[sjames]

OK, have a look. Looks like six similar shots on the first line alone. I very much doubt that the plaintiff was the first to ever do that and I very much doubt that he'll be the last.

If the plumber wants too much money to put in a new toilet, I'll do it myself. If the photographer wants too much money for yet another shot of a bus with Big Ben in the background, I'll take one myself.

As for the Linux case, how about if they do what the photographer did and have a look at the ABI and make a brand new implementation of it (with a few twists) to produce yet another Unix like kernel?

The world of Art

[inode_buddha]

The artistic world would entirely disagree with this Judge. By that I mean, the entire population of visual artists who work in traditional media. It has been acknowledged and even encouraged for hundreds if not thousands of years to study each others works and to do ones own version them. Usually one would subtitle "A study after so-and-so..." and its all good. Much in the same way a music group will do a "cover" of another band's song. *ALL* of the Masters learned their trade by copying others - even Rembrandt, Michelangelo, et al. NONE of them were "self-taught"!!!

Re:If inspiration is copyright infringement....

[hedwards]

Not quite, Xerox would have won, and Apple and MS would probably be relegated to some minor role the way that Boreland was.

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:You got do be kidding me

[swillden]

Now a freaking IDEA is protected under copyright?

Though this ruling reaches a little bit further than most, that's already been the case for a while. If you write a book that uses characters and plot are too similar to an existing book, you can be successfully sued for copyright infringement. Same for movies, same for movies made from books and vice versa, or video games, etc.

This case focused mainly on the bad faith of the creator of the second photo, and I agree that he did act in bad faith -- first using the original photo without paying for it, and then making the second as a workaround -- but the precedent it sets is frightening.

IMO, copyright is fundamentally a good idea, if implemented with an appropriate sense of balance. But it's an idea based on a social contract that is intended to benefit the public as a whole, not creators. This ruling and many more of similar ilk, not to mention all of the massive legislative expansions of copyright, in time, space and subject matter, are all based on a misapplication of copyright, one where copyright is assumed to be for the benefit of the creator, not for the benefit of the public domain. That view of copyright is, IMO, a fundamentally bad idea that impoverishes the public domain rather than enriching it. It's just dumb for society to spend time and effort impoverishing itself.

What about Schindler's list?

[jfern]

Everything was black and white except for that one girl with the red dress.

Re:What about Schindler's list?

[Anomalyst]

Ripped off from the scene in "The Matrix".

Portrait photo

[SmallFurryCreature]

How does a simple portrait photo survive your thinking? Same angle, same composition, some treatment. Oops!

What about a CV or any standard document? My CV is certainly my creation so if you copy my style, are you an infringer?

Terry Pratchett is rather famous (a reviewer on the BBC I think slammed him for it and was torn to shreds for it) for not using chapters. So if I write without chapters, I am infringing? Only one person can write without chapters? For that matter, isn't the idea of dividing a story in chapters a copyrighted idea?

There are some compositions that stand out, I wrote another comment about the Abby Road cover but what of that shot in Star Wars of Luke standing with two suns in the background? It is a classic shot, with a very simple effect it instantly creates an alien world. But it is NOT a new idea, lots of covers of old sci-fi and fantasy books do the same, showing the hero looking out over an alien landscape. HOW the landscape is alien might differ, dragons in the sky, a gigantic moon, rings in orbot, but the idea is the same. Who owns that composition?

The idea of owning a specific composition, an idea, is frightening. It is one thing for the Disney corporation to have infinite copyright on Mickey Mouse but to give them ownership of the idea of a cartoon mouse... EVEN Disney would not go, has not gone, that far. See Tom and Jerry, The Secret of Nimh and others.

For that matter, what would happen to the web? How many sites use the same composition, header, footer, body? Are newspaper columns now owned by the first newspaper? The BBC itself is in serious trouble, who owns the composition off the news reader looking straight into the camera from behind a desk while reading the news? Can you imagine the hazzle of every news show having to come up with a new composition that isn't to similar to every one elses? There are 179 or so countries, each with at least 1 news show...any new program would have to come up with something amazing not to infringe.

No, I think this Judge let himself be ruled by the other infringement facts of the case and wanted to rule against the defense no matter how it would affect the rest of the world. The 2nd foto was taken to avoid paying for the 1st one, that is not nice BUT to make it illegal to punish the not so nice defendant is to let loose the lawyers of frivolous lawsuits. This judge will be remembered for a long time. And not in a good way.

Re:Dirty vs Clean Programmer

[SplashMyBandit]

Your legal department are dullards. if we ignore patents, you can make a *compatible* interoperable copy of any software provided you didn't use the bits or source of the original. Now, it is much easier to prove this if your guys are not 'tainted' by seeing the other fellows product, but it is not necessarily required - just harder to prove. This has been tested over and over again in court. Consider something like SAMBA. It is designed to be *exactly* like a Windows SMB system, and is permitted to be for the purposes of interoperability. Your lame legal department schmucks should have known this - it is their job to, after all.

photograph mostly black & white except for obj

[TaoPhoenix]

(Reading Article to try to stay on target)

Specifically, Judge Birss QC highlighted two visual contrasts: "one between the bright red bus and the monochrome background" ...

Okay, so now we get to see if the Judge did any homework:

John Doe (TV series)
http://en.wikipedia.org/wiki/John_Doe_(TV_series)

The entire plot revolves around why a couple of people in John Doe's life are in color while the rest of the world is monochrome. So I think the judge had better talk to Brandon Camp, Mike Thompson, Mimi Leder, and Fox TV.

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

Re:Methinks the people here doth protest too much.

[Geeky]

Exactly.

From the judgement: "Conversely the claimant says: The defendants are free if they wish to create a red on grey London icon image. They can even have a Routemaster before the Houses of Parliament. As their own evidence shows, these can be depicted in all sorts of different ways. But what they cannot have is a southbound Routemaster on Westminster Bridge before the Houses of Parliament at the same angle as the claimant's work on a greyscale background and a white sky, in circumstances where they have admitted seeing the claimant's work"

The judge shot that down as putting the case too high. What he seems to be saying is that seeing a picture of a red southbound routemaster bus in a desaturated view of Westminster bridge, as used to advertise one product, and then asking a photographer to create something similar to advertise your own product is copyright infringement.

Having said that, I think the compositions are different enough to avoid any risk of confusion.

And secondly, if I'd been responsible for either image I'd be hiding in my corner that taste forgot rather than making a big deal out of it. Seriously, selective colouring? Still?

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?

Problem solved!

[blackbeak]

Uhm, I've got international copyright protection on "convoluted logic processing resulting in obviously stupid legal judgements" - so stand down, infringing Judge!