Court ruling changes picture on copyright in photographs

Eposure’s neighbours, specialist creative industries Lawyers, Ward Hadaway, have detailed a recent court ruling which ruled in favour of a photographer in a copyright dispute.

Their full write up is included below, but the main implications from the ruling are as follows:

‘As a result [of the case], it is being speculated that anyone attempting to imitate existing photographs, or commissioning a photograph based on existing photography, could fall foul of the laws of copyright protecting the pre-existing photo. The balance that exists between the freedom of ideas, and the protection of the expression of ideas, may have shifted more towards the protection of expression in photography cases.’

What does this mean for photographers?

The case highlights an apparent extension in copyright protection for photographs. This potential effect is amplified by the pending implementation of the Hargreaves Report recommendations to introduce a small claims track for intellectual property disputes. Whilst in times gone by, people may have been less likely to litigate over the perceived infringement of copyright in photographs due to uncertainty over the level of legal protection and the potential costs involved, this may well now be about to change

WARD HADAWAY – FULL REPORT

The ruling in a recent court case looks set to alter the landscape when it comes to copyright in photographs.

What happened?

The case – Temple Island Collections Limited v New English Teas Limited, Nicholas John Houghton  EWPCC 1 – was heard in The Patents County Court.

It involved a photograph taken from south of the river Thames, which captured a red Routemaster bus crossing Westminster Bridge, with the Houses of Parliament, Big Ben and Portcullis House in the background.

The photo had been digitally manipulated to make the background monochrome and highlight the red bus. The company – Temple Island Collections – used the iconic image to help sell a range of London-themed souvenirs, as well as licensing it to other organisations such as the operator of the Tower of London and the National Gallery.

Nicholas Houghton, a director at New English Teas, took several photographs himself to produce a new ‘England’ image for the tins in which the company sold its packaged tea around the world.

Mr Houghton edited the photographs together to come up with an image of the Houses of Parliament in grey with a red bus on Westminster Bridge.

Why was this a problem?

Temple Island Collections claimed the New English Teas image was an infringement of its copyright, arguing that it reproduced a substantial part of its previous work, which itself was protected by copyright.

The company said that the two images looked strikingly similar and argued that New English Teas could have chosen many ways in which to capture a bus in front of the Houses of Parliament, yet did so in a way which was strikingly similar to the claimant’s photo.

What did the defendants say?

The defendants – New English Teas and Mr Houghton – denied copyright infringement, arguing copyright law could not be used to effectively give a monopoly over a monochrome photo of the Houses of Parliament with a red bus in the foreground.

The defendants argued that the common element in the two images did not mean it had come from the claimant’s work. They pointed out that copyright law does not extend to protecting an idea, only the expression of an idea, and that their expression of the same idea as the claimant’s was different in almost every respect.

What did the court say?

The court had to consider two factors in making its decision:
1. Whether the claimant’s work was capable of attracting copyright protection; and
2. Whether, if the claimant’s work did attract copyright protection, the defendants had infringed this copyright by copying a substantial part of its work.

The court found in the claimant’s favour on the first question having looked at previous cases which explored the scope of photographic copyright including cases heard at the European Court of Justice and the Austrian Supreme Court, where it was held that a photograph is capable of attracting copyright protection, irrespective of its artistic quality, providing that it is the author’s own “intellectual creation”. The question of intellectual creation is one of originality – which, in the case of photographs, consists of the motif, visual angle, illumination, exposure and effects, developing techniques etc used by the author. The Judge had no problem finding that, despite the claimant’s photo being of some iconic symbols of London, it was the result of the author’s “intellectual creation”, both in terms of the location and conditions chosen for the photo itself, and the skill and labour involved in the manipulations made to it thereafter.

On the second question, the Judge said that despite the absence in the defendants’ image of some important compositional elements found in the claimant’s photo, the defendants’ image still included the key combination of what the Judge called the “visual contrast features with the basic scene itself” from the claimant’s image. This was, according to the Judge, what made the claimant’s image “visually interesting.”

The court therefore ruled that the defendant had copied a substantial part of the claimant’s photo meaning that the claimant’s copyright had been infringed by the defendants.

What has been the reaction to the decision?

There has been considerable surprise at the decision, particularly given the common usage of the subject matter of the photographs in question. The courts have often found difficulty in applying copyright law to cases involving photographs. This was apparent from the judgement in this case, as the Judge sought to draw a distinction between the small amount of skill and labour involved in the simple pressing of a shutter in a “mere photograph”, when compared to a “photographic work” such as the claimant’s, which involved a significant degree of pre-picture considerations and post-picture editing.

As a result, it is being speculated that anyone attempting to imitate existing photographs, or commissioning a photograph based on existing photography, could fall foul of the laws of copyright protecting the pre-existing photo. The balance that exists between the freedom of ideas, and the protection of the expression of ideas, may have shifted more towards the protection of expression in photography cases.

What does this mean for me?

The case highlights an apparent extension in copyright protection for photographs. This potential effect is amplified by the pending implementation of the Hargreaves Report recommendations to introduce a small claims track for intellectual property disputes. Whilst in times gone by, people may have been less likely to litigate over the perceived infringement of copyright in photographs due to uncertainty over the level of legal protection and the potential costs involved, this may well now be about to change.

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