In the UK law cited in the text of the full judgement, copyright covers "intellectual creation". The judge interpreted the second photo as a reproduction of the first photo's intellectual creation and decided that was an infringement.
The full judgement is here that provides the legal basis for the decision, which states that copyright covers "intellectual creation". Specifically, note the following in the "Subsistence of copyright" section:
17. Copyright subsists in original artistic works (s1(1)(a) of the Copyright Designs and Patents Act 1988). "Artistic work" means "a graphic work, photograph, sculpture or collage irrespective of artistic quality" (s4(1)(a)). "Photograph" means a "recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film" (s4(2) of the 1988 Act).
18. At trial it was common ground that the impact of European Union law meant that the judgment of the CJEU in the Infopaq case (C-5/08 [2010] FSR 20) was such that copyright may subsist in a photograph if it is the author's own "intellectual creation". After trial it was also common ground that the recent judgment of the CJEU in the Painer case (C-145/10, 1st December 2011) was to the same effect and did not necessitate further submissions from the parties.
19. Mr Edenborough also referred me to and relied on O (Peter) v F KG ([2006] ECDR 9) decided on 16th December 2003. This is a decision of the Austrian Oberster Gerichtshof (Supreme Court). It is a court which comprises judges with considerable expertise in intellectual property matters. The court there was considering a claim to copyright in photographs of grape varieties used as illustrations in a book. They were applying an approach to copyright based on the principle that the work must be the creator's own intellectual creation. They held (in translation):
In accordance with more recent jurisdiction of the finding Senate, photographs are to be considered photographic works in the sense of s.3(2) UrhG (Copyright Law), if they are the result of the creator's own intellectual creation, with no specific measure of originality being required. What is decisive is that an individual allocation between photograph and photographer is possible in so far as the latter's personality is reflected by the arrangements (motif, visual angle, illumination, etc.) selected by him. Such freedom of creation does certainly exist not only for professional photographers with regard to works claiming a high artistic level, but also for a lot of amateur photographers, who take pictures of everyday scenes in the form of photos of landscapes, persons and holiday pictures; also, such photographs shall be deemed photographic works, as far as the arrangements used cause distinctiveness. This criterion of distinctiveness is already met, if it can be said that another photographer may have arranged the photograph differently []. The two-dimensional reproduction of an object found in nature is considered to have the character of a work in the sense of copyright law, if one's task of achieving a representation as true to nature as possible still leaves ample room for an individual arrangement []. (Paragraph 2 1. of the judgment. References have been omitted.)
20. Although the language used in this judgment differs from the way in which an English court would traditionally express itself in a copyright case, I believe there is no difference in substance between the law as applied here by the Austrian Supreme Court and the law here. A photograph of an object found in nature or for that matter a building, which although not natural is something found by the creator and not created by him, can have the character of an artistic work in terms of copyright law if the task of taking the photograph leaves ample room for an individual arrangement. What is decisive are the arrangements (motif, visual angle, illumination, etc.) selected by the photographer himself or herself.
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?
Like I said, if there existed examples of common red London bus/b&w Big Ben artwork before 2006, then that would constitute prior art, and the plaintiff shouldn't have won. However, TFA says that the defendant could not provide dates for the examples he offered.
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...
Apple isn't suing over glassy tablets with rounded corners. It's the overall combination of similar design elements that obviously came from Jonathan Ive's design studio which no tablets or smartphones looked like previously: the exact same black border with the same spacing, the same chrome back with just enough peeking over the sides to frame the black front, the same hardware dimensions, the same earpiece slit, the same software icon grid with in many cases the exact same icons...I mean, come on. That entire combination of so many visual and behavioral similarities is clearly a design copy.
Take a look at these iOS devices and you can all the industrial design elements that the copies incorporate to resemble the originals as closely as possible. It's not just simple variations but complete recreations, without having done the design work that Apple had to go through to come up with them (Jobs probably had a whip). There weren't smartphones or tablets that looked like those devices before Apple put those designs out on the market.
And by the way, the previous link is a trick. Those are Toshiba devices, not iOS devices. You literally can't tell the difference from the picture. That's how much of a clone they are. So I don't blame Apple at all for going after competitors who just repackage their work, especially because, as has been mentioned before around here, if the knock-offs are poorly made or faulty in some way, it can actually damage Apple's brand because the devices are intentionally made to look so similar.
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.
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.
i actually did look at both, and he's got a point.
You looked at what? He didn't link anything. What point are you referring to?! He thinks I'm bonch because I've criticized Google before, and clearly anyone else who has also criticized Google must be a puppet account. Stupid.
This isn't democracy - you either prove your not bonch, or that unfortunate set of posts stands - you're he, and they you. Your comeback is pretty weak, too; it's what one would expect, when weaseling one's way out of being caught. You're more outraged at having the message corrupted then by your person being misidentified. Obvious shilling. (don't trust high ids, kids!)
I honestly couldn't care less what you believe. I don't need to prove anything. GreatBunzinni has already revealed himself as one of the anonymous trolls who stalks my posts, because he anonymously posted almost the exact same message earlier today, word for word, complete with the two comment links (properly formatted this time). For someone accusing others of posting with multiple accounts, he seems to have no problem writing a ton of anonymous replies over the last few months, one of which stated that he uses an open proxy.
Dude, what is wrong with you? You sound like every stereotypically angry PC gamer I've ever met. Drivers really are waste of time on PCs, and someday, the idea that people manually updated drivers and defragmented hard drives and all the other crap they do will seem as archaic as hand-cranking to start a Model T.
I think the cause of reactions like yours is that some people don't have control in their lives, so they seek it in PCs, because mastering the upkeep required for a PC gives you that missing feeling of control. Having that feeling taken away from you by non-PCs threatens you on a core level, reminding you of the lack of control in your real life, so you snap back to protect it. Maybe that's not you, but damn, there are a lot of people like this.
No, but I sure notice similarities between this post and this post. You're the troll who has been anonymously accusing people of being shills, and now you've created some psychotic "list" of accounts.
Hi, GreatBunzinni. How do I know it's you? Read on.
I'm getting sick of this crap. You've been anonymously following my posts for months now, accusing me of being bonch, SharkLaser, and others. And now you're repeatedly getting upmods for it.
This is not bonch. I don't follow a script. The post you cited from me about rounded rectangles was in response to someone who joked that Apple was suing over rounded rectangles, so of course my post is going to sound similar to someone else who agrees with me. All you did was go through a site that gets thousands of comments a day and round up a bunch of people who fall into the same spectrum on their positions. You can do that with any position--pro-Linux, pro-Google, pro-Microsoft, pro-Oracle, pro-whatever.
If you want to talk about shills posting on multiple accounts, why don't you explain why your anonymous post looks an awful lot like this post by GreatBunzinni? You even tried to link to the same posts, though you didn't format it correctly that time. You've accidentally outed yourself.
In the last month, the accusations of multiple accounts, "shills", and other conspiracy theories has exploded, and it's getting regularly modded up. Accused accounts are actually getting downmods now on legitimate posts. As of this writing, your post is almost +5 Informative. The moderation system has jumped the shark.
So, screw you, GreatBunzinni, for contributing to the chaos of the discussion, trying to force people off the site whose opinions you don't like, and getting people to go along with it.
Valid points, but on the other hand, I think a lot of students who would feel alienated in a normal high school might feel like they could fit in here and have a superior social experience.
I'm getting so tired of these accusations. This is not bonch. I don't post "astroturfing propaganda based on the same script" and you can't provide any example of it. Whatever you were trying to link didn't even show up.
This is exactly the dumb crap going on that is ruining the site. Absolutely everybody who doesn't take a hardline pro-Google/pro-Linux position is called a shill, a troll, a paid employee, etc. Not only is it cartoony and stupid, but I'm willing to bet there are a lot more posters with vested interests in Google and Linux posting on Slashdot than there are with vested interests in Apple or Microsoft. There are often posts proclaiming that Google has never done anything wrong and that any negative news about them is just a Microsoft-funded conspiracy, but you never see those people getting accused of being a paid-for Google shill.
I wonder if people would be calling him a troll and a shill if he was first-posting pro-Linux propaganda. I bet it would be +5 Insightful. Something to think about.
I subscribed, and I was glad I did when I was able to upgrade a bunch of my MP3s to iTunes Store AAC files, with whatever quality improvement there is in going from an amateur's MP3 encoding to a studio's AAC release. Mostly, I find that the music sounds a little louder, which could be the result of other factors like the store using a newer remastering, for example.
It's nice having my entire music collection on my iPad, but I actually have so much music (about 100GB), apparently, that I often crash iTunes on my iPad 1 when I first load it. It comes up on the second launch.
Just because people disagree with you doesn't mean you're right.
Nobody ever claimed such.
However, just because someone has reached a conclusion you don't like doesn't make them mentally deranged or a paid astroturfer. If you believe a position to be wrong, it's so much more persuasive to respond to the points one by one rather than shoo them off with personal attacks, which only serves to please those who already agreed with you.
Are you one of those angry fanboys with Asperger's who thinks anything even remotely critical of Google shouldn't be allowed on Slashdot? Seriously, Android fanboys are even more obnoxiously closed-minded than Apple fanboys.
There are multi billion dollar indusries built around promoting products/slandering competitors while pretending to be part of the onine community. Most of the big tech companies use sockpuppet accounts to "manage discussion" on Slashdot already.
Do you actually have any proof of this? Going by your post history, it looks like you're basing this on personal hatred of Apple and any pro-Apple posts. But couldn't your pro-Android posts just as easily be construed as paid-for posts by Google? Why does Google/Android evangelism on Slashdot escape your accusations?
Hell, did you read the comments to the Google FTC antitrust investigation article? The first 50 posts are almost all upmodded conspiratorial accusations against Microsoft! None of them actually respond to the facts of the story.
And people say there are Apple and Microsoft shills on Slashdot? That last paragraph reads like stock phrases from a marketing suit. "...Google's superiority and innovativeness...these charges are absolutely baseless and I look forward to Google being vindicated..." And it gets modded as Insightful!
I use Google products too, but come on. Google is huge, and if they're overstepping their bounds, they should be investigated just like Microsoft was a decade ago.
You see, if you think something is so cool, if you really believe in it, you want everyone else to believe too. Android stands in the way of that, because non-believers say "yeah, iphones are pretty cool. Some of those Android phones are pretty cool too."
Yes, Android fans are totally objective and middle-ground about their choice of smartphone operating system. They "stand in the way" of platform advocacy and never try to convince everyone that they should all be using Android, nor do they bash people by using terms like "iFans."
God, Slashdotters are the most out-of-touch people on the planet.
The backlash against Apple came some time before Android, and the cause of it was people like you: shills. Perhaps also the fact that Apple is an enemy of the free web.
The company that contributes WebKit and pushes HTML5 over Flash is the enemy of the free web?
We got tired of every comment fawning over Apple getting +5, interesting.
Can you actually give an example? What comments are you referring to? Because posts fawning over Apple on Slashdot ALWAYS, ALWAYS get modded down.
Slashdot Mirror
In the UK law cited in the text of the full judgement, copyright covers "intellectual creation". The judge interpreted the second photo as a reproduction of the first photo's intellectual creation and decided that was an infringement.
The full judgement is here that provides the legal basis for the decision, which states that copyright covers "intellectual creation". Specifically, note the following in the "Subsistence of copyright" section:
Like I said, if there existed examples of common red London bus/b&w Big Ben artwork before 2006, then that would constitute prior art, and the plaintiff shouldn't have won. However, TFA says that the defendant could not provide dates for the examples he offered.
Apple isn't suing over glassy tablets with rounded corners. It's the overall combination of similar design elements that obviously came from Jonathan Ive's design studio which no tablets or smartphones looked like previously: the exact same black border with the same spacing, the same chrome back with just enough peeking over the sides to frame the black front, the same hardware dimensions, the same earpiece slit, the same software icon grid with in many cases the exact same icons...I mean, come on. That entire combination of so many visual and behavioral similarities is clearly a design copy.
Take a look at these iOS devices and you can all the industrial design elements that the copies incorporate to resemble the originals as closely as possible. It's not just simple variations but complete recreations, without having done the design work that Apple had to go through to come up with them (Jobs probably had a whip). There weren't smartphones or tablets that looked like those devices before Apple put those designs out on the market.
And by the way, the previous link is a trick. Those are Toshiba devices, not iOS devices. You literally can't tell the difference from the picture. That's how much of a clone they are. So I don't blame Apple at all for going after competitors who just repackage their work, especially because, as has been mentioned before around here, if the knock-offs are poorly made or faulty in some way, it can actually damage Apple's brand because the devices are intentionally made to look so similar.
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.
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:
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.
Extra crap like a bundled closed-source Flash plugin?
There is, and you even posted a link to a bunch of them.
Of course you have no problem with AC comments. You've been outed today as one of the biggest anonymous trollers on the forum.
You looked at what? He didn't link anything. What point are you referring to?! He thinks I'm bonch because I've criticized Google before, and clearly anyone else who has also criticized Google must be a puppet account. Stupid.
I honestly couldn't care less what you believe. I don't need to prove anything. GreatBunzinni has already revealed himself as one of the anonymous trolls who stalks my posts, because he anonymously posted almost the exact same message earlier today, word for word, complete with the two comment links (properly formatted this time). For someone accusing others of posting with multiple accounts, he seems to have no problem writing a ton of anonymous replies over the last few months, one of which stated that he uses an open proxy.
Dude, what is wrong with you? You sound like every stereotypically angry PC gamer I've ever met. Drivers really are waste of time on PCs, and someday, the idea that people manually updated drivers and defragmented hard drives and all the other crap they do will seem as archaic as hand-cranking to start a Model T.
I think the cause of reactions like yours is that some people don't have control in their lives, so they seek it in PCs, because mastering the upkeep required for a PC gives you that missing feeling of control. Having that feeling taken away from you by non-PCs threatens you on a core level, reminding you of the lack of control in your real life, so you snap back to protect it. Maybe that's not you, but damn, there are a lot of people like this.
Yes, because installing Linux is the reason people buy a Playstation 3.
No, but I sure notice similarities between this post and this post. You're the troll who has been anonymously accusing people of being shills, and now you've created some psychotic "list" of accounts.
Get a life.
Hi, GreatBunzinni. How do I know it's you? Read on.
I'm getting sick of this crap. You've been anonymously following my posts for months now, accusing me of being bonch, SharkLaser, and others. And now you're repeatedly getting upmods for it.
This is not bonch. I don't follow a script. The post you cited from me about rounded rectangles was in response to someone who joked that Apple was suing over rounded rectangles, so of course my post is going to sound similar to someone else who agrees with me. All you did was go through a site that gets thousands of comments a day and round up a bunch of people who fall into the same spectrum on their positions. You can do that with any position--pro-Linux, pro-Google, pro-Microsoft, pro-Oracle, pro-whatever.
If you want to talk about shills posting on multiple accounts, why don't you explain why your anonymous post looks an awful lot like this post by GreatBunzinni? You even tried to link to the same posts, though you didn't format it correctly that time. You've accidentally outed yourself.
In the last month, the accusations of multiple accounts, "shills", and other conspiracy theories has exploded, and it's getting regularly modded up. Accused accounts are actually getting downmods now on legitimate posts. As of this writing, your post is almost +5 Informative. The moderation system has jumped the shark.
So, screw you, GreatBunzinni, for contributing to the chaos of the discussion, trying to force people off the site whose opinions you don't like, and getting people to go along with it.
Signed,
NOT bonch
Valid points, but on the other hand, I think a lot of students who would feel alienated in a normal high school might feel like they could fit in here and have a superior social experience.
I'm getting so tired of these accusations. This is not bonch. I don't post "astroturfing propaganda based on the same script" and you can't provide any example of it. Whatever you were trying to link didn't even show up.
This is exactly the dumb crap going on that is ruining the site. Absolutely everybody who doesn't take a hardline pro-Google/pro-Linux position is called a shill, a troll, a paid employee, etc. Not only is it cartoony and stupid, but I'm willing to bet there are a lot more posters with vested interests in Google and Linux posting on Slashdot than there are with vested interests in Apple or Microsoft. There are often posts proclaiming that Google has never done anything wrong and that any negative news about them is just a Microsoft-funded conspiracy, but you never see those people getting accused of being a paid-for Google shill.
Enough with the bias!
I wonder if people would be calling him a troll and a shill if he was first-posting pro-Linux propaganda. I bet it would be +5 Insightful. Something to think about.
I subscribed, and I was glad I did when I was able to upgrade a bunch of my MP3s to iTunes Store AAC files, with whatever quality improvement there is in going from an amateur's MP3 encoding to a studio's AAC release. Mostly, I find that the music sounds a little louder, which could be the result of other factors like the store using a newer remastering, for example.
It's nice having my entire music collection on my iPad, but I actually have so much music (about 100GB), apparently, that I often crash iTunes on my iPad 1 when I first load it. It comes up on the second launch.
Nobody ever claimed such.
However, just because someone has reached a conclusion you don't like doesn't make them mentally deranged or a paid astroturfer. If you believe a position to be wrong, it's so much more persuasive to respond to the points one by one rather than shoo them off with personal attacks, which only serves to please those who already agreed with you.
This isn't bonch. Going by post history, he's getting upmodded, not downmodded. Aren't you Galestar/NicknameOne/flurp who replies to all his posts?
Are you one of those angry fanboys with Asperger's who thinks anything even remotely critical of Google shouldn't be allowed on Slashdot? Seriously, Android fanboys are even more obnoxiously closed-minded than Apple fanboys.
Do you actually have any proof of this? Going by your post history, it looks like you're basing this on personal hatred of Apple and any pro-Apple posts. But couldn't your pro-Android posts just as easily be construed as paid-for posts by Google? Why does Google/Android evangelism on Slashdot escape your accusations?
Hell, did you read the comments to the Google FTC antitrust investigation article? The first 50 posts are almost all upmodded conspiratorial accusations against Microsoft! None of them actually respond to the facts of the story.
And people say there are Apple and Microsoft shills on Slashdot? That last paragraph reads like stock phrases from a marketing suit. "...Google's superiority and innovativeness...these charges are absolutely baseless and I look forward to Google being vindicated..." And it gets modded as Insightful!
I use Google products too, but come on. Google is huge, and if they're overstepping their bounds, they should be investigated just like Microsoft was a decade ago.
I love how you respond to an anecdote with another anecdote, and then accuse the other guy's anecdote of being biased.
Android fanboys are the worst because they're completely non-self-aware.
Yes, Android fans are totally objective and middle-ground about their choice of smartphone operating system. They "stand in the way" of platform advocacy and never try to convince everyone that they should all be using Android, nor do they bash people by using terms like "iFans."
God, Slashdotters are the most out-of-touch people on the planet.
The company that contributes WebKit and pushes HTML5 over Flash is the enemy of the free web?
Can you actually give an example? What comments are you referring to? Because posts fawning over Apple on Slashdot ALWAYS, ALWAYS get modded down.
Basically, you're full of shit.