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January 26, 2012 5:02 AM   Subscribe

UK Photographers who compose a picture in a similar way to an existing image [PDF] risk copyright infringement, lawyers have warned following the first court ruling of its kind.
posted by unSane (55 comments total) 10 users marked this as a favorite

 
My take on that is basically, "no one can ever take another photograph in the UK again" because every photograph is similar to one that's already been taken by someone else. Seriously if I was a pro over there I'd take down my shingle. It's not worth the risk.
posted by seanmpuckett at 5:08 AM on January 26, 2012


So every "the kids standing in front of (monument)" vacation holiday pic is pretty much in violation, isn't it?

We get Chris Dodd, they get the Piranha Brothers. Only seems fitting I suppose.
posted by Kid Charlemagne at 5:11 AM on January 26, 2012 [1 favorite]


I agree with this sentiment in the second link

I have to say that although I follow the logic I feel very uneasy at Judge Birss's decision in Temple Island. It seems to come very close to protecting copyright in an idea as opposed to expression.

Or else there are a lot of people who should feel a bit uneasy right about now.
posted by like_neon at 5:16 AM on January 26, 2012


I think something interesting is going to happen with photography. It has long been seen as a representative art form, to the point that many people discount the creativity of photographers claiming that all they do is capture what is there mechanically. But as digital cameras bring more of the aesthetic choices out of the moment (white balance, high resolution sensors making cropping painless, and even re-focusing the image with that new lightfield camera) the line between capturing the light and composing the photograph becomes brighter. What happens when essentially all the aesthetic choices can be made later, and all the camera is doing is capturing the information present at the time you press the shutter? Can you claim copyright on the information? What if two people compose images from the same source data?

But then something like this comes along and makes me realize that we can't even deal with the (comparatively) easy questions like what to do if someone composes a photograph in a similar way to another.
posted by Nothing at 5:17 AM on January 26, 2012 [2 favorites]


If this idea comes to the US, there a a bunch of people who will be up the creek; here, for example.
posted by TedW at 5:17 AM on January 26, 2012


Umm, does this mean that we can all go after google street view...

(before they go after us)
posted by titus-g at 5:17 AM on January 26, 2012


There is lots of ill-informed kneejerk crap posted about this already, please don't let MF add to it. The two parties have a lot of legal history and this seems to be about one party trying to avoid paying the other license fees for use of their image (by making their own clone).
posted by epo at 5:18 AM on January 26, 2012 [2 favorites]


The judgement is a lot more nuanced than the post makes out. The judge is taking into account the fact that the defendant deliberately set out to make an image similar to the original (by using photoshop to composite several images together), that the original had a long history of being sold on various souvineers and had been licensed by many different organisations and that the defendant chose not to use any other similar photo (which the judge said would not have infringed) or to go and take their own.

I would recommend reading the judgement.
posted by BigYesh 2 at 5:20 AM on January 26, 2012 [13 favorites]


First person to take a photo wins!
posted by blue_beetle at 5:28 AM on January 26, 2012 [2 favorites]


I guess H&M should be worried, then.
posted by empath at 5:30 AM on January 26, 2012


I respect that there's a lot of history between these companies, and the similarity is deliberate, but I don't see how that makes the judgement right. The offending company simply didn't user the original image in any way, and the idea is neither original nor copyrightable. It's a bad judgement.
posted by Jehan at 5:33 AM on January 26, 2012 [2 favorites]


The judge is taking into account the fact that the defendant deliberately set out to make an image similar to the original

Yes, it's more about this kind of thing.
posted by StickyCarpet at 5:39 AM on January 26, 2012 [1 favorite]


There is nothing wrong with deliberately making a similar image, that's inspiration, not copyright infringement. We should use anti-trust law for situations where an organization controls a market to the detriment of others.

Geist : The Behind-the-Scenes Campaign To Bring SOPA To Canada (cont)
McIntyre : "Ireland's SOPA" will be vague and open-ended

Falkvinge : It Is Time To Stop Pretending To Endorse The Copyright Monopoly

Pirate Party : No Safe Harbor
A book on pirate politics with articles by Falkvinge, Lessig, etc.
(Ain't look at this one yet or I'd likely post it)
posted by jeffburdges at 5:47 AM on January 26, 2012 [3 favorites]


Preposterous.
posted by crunchland at 5:50 AM on January 26, 2012


The IPKat blog has a particularly thorough analysis of the judgment.

The case is a lot more nuanced than the way it is presented in the FPP. This was much more than "inspiration": both images showed a red London bus on the same greyscale landscape, with just a slight change of angle.

It is, however, a good example of how difficult it can be to determine the scope of copyright.
posted by Skeptic at 5:56 AM on January 26, 2012 [3 favorites]


Also, jeffburdges, is this the third or fourth time that you link to Falkvinge's article? It's getting tiresome.
posted by Skeptic at 5:59 AM on January 26, 2012


Cory Doctorow must be having a cow over this one.
posted by crunchland at 5:59 AM on January 26, 2012 [1 favorite]


I agree that the history between the two parties is not relevant. Sure there's more nuance to the story, but that doesn't make the judgement any less wrong, IMO.
posted by sutt at 6:06 AM on January 26, 2012


I guess H&M should be worried, then.
posted by empath at 5:30 AM


As well they should be. That seems a way more straightforward case of plagiarism (as H&M appears to have recognised by withdrawing the offending wares).
posted by Skeptic at 6:07 AM on January 26, 2012


The judge is taking into account the fact that the defendant deliberately set out to make an image similar to the original

It's not that similar though. It's not even from the same viewpoint, which would have been trivial to do.
posted by smackfu at 6:19 AM on January 26, 2012


There may be history and complications in the case (there always are), but the key factor in the judgement is the creation of the idea that the composition is copyrighted, not just the photo itself.

From that IPKat link: ...if this decision is correct, then 'advice which I have given law students since I first taught copyright in the 1970s is no longer reliable, that the photographer who recreates the effect of another's photograph of a public scene or monument is now a copyright infringer, and that there may now be a notion of copyright in an idea, a lay-out or a scheme for such a photograph'.

In other words, this is new. The law does appear to have changed. Copyright does now include ideas (in the UK at least).

There are lots of other places this could apply: cookbooks have this exact sample problem with recipes, for example.
posted by bonehead at 6:19 AM on January 26, 2012 [1 favorite]


This isn't what people seem to be making it out to be. If the second image didn't have a similar red bus on a monochrome background it wouldn't be a copyright violation.
Taking a picture from a similar angle as a preexisting picture is still allowed.
posted by rocket88 at 6:30 AM on January 26, 2012


The nuance does not matter. This is something that has been considered settled law for nearly a century. Composition is an idea. "A red bus on a grayscale background" is an idea, and you can't copyright an idea. Except I guess now you can in the UK. No creative work is safe there now.
posted by localroger at 6:33 AM on January 26, 2012 [1 favorite]


Going back to the judgement:

Judge Birss considered the scope of photographic copyright by reference to three aspects which could be considered 'original':

'(i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;
(ii) Residing in the creation of the scene to be photographed;
(iii) Deriving from being in the right place at the right time'.


All three of those criteria relate to composition of a second, original photograph. Not one of them are about reproduction or copying of an existing work. This decision seems to me to rest entirely on the idea of the photograph, its composition, rather than the original digital or physical artifact of the photo itself.
posted by bonehead at 6:33 AM on January 26, 2012


I wonder how this judge would find in the case of big software company ripping off the concept cerated by a three man crew.
posted by hat_eater at 6:34 AM on January 26, 2012


I guess this means my cool plan to exhibit a shark in a lucite block in the UK should be put on hold.
posted by localroger at 6:34 AM on January 26, 2012


There is nothing wrong with deliberately making a similar image, that's inspiration, not copyright infringement.

It seems that this is more like trademark, where the standard is if one can be confused for the other in the marketplace.
posted by StickyCarpet at 6:38 AM on January 26, 2012 [1 favorite]


Then this should have been trademarked and tried as such. Instead, the judge appears to have reinvented copyright.
posted by bonehead at 6:41 AM on January 26, 2012 [2 favorites]


This is something that has been considered settled law for nearly a century. ... you can't copyright an idea

Photos have had copyright protection since 1884 in the US. Though ideas are plainly outside the scope of copyright law here under 17 USC 102(b) (there must be something "fixed in any tangible medium of expression"), something as nebulous as a fictional character has been protected by copyright.

For example, Honda's car commercial with a "young, well-dressed couple in a Honda del Sol being chased by a high-tech helicopter" was found to have infringed a MGM's copyright in James Bond.
posted by exogenous at 6:47 AM on January 26, 2012 [1 favorite]


exogenous, in what sense is US law at all relevant here?
posted by salmacis at 6:56 AM on January 26, 2012


The FPP has been phrased incorrectly: the story is actually that if you have taken some photos already and spend enough time looking through others' photos, you may find an occasional similarity that will net you a cash settlement. Think of it as a paredolia-based contest.
posted by ricochet biscuit at 7:09 AM on January 26, 2012 [2 favorites]


exogenous, in what sense is US law at all relevant here?

Some people think the countries share certain common law origins.
posted by exogenous at 7:12 AM on January 26, 2012


So, I have to ask, is this judgement now the law? I edit a small community magazine, and words knows I worry about copyright wiping us out if we make a misstep. I hate the fact that some lawfool has just made my life a little bit harder.
posted by Jehan at 7:14 AM on January 26, 2012


The unintended consequence is that movie producers are going to sue each other into oblivion.
posted by elgilito at 7:25 AM on January 26, 2012


The Temple Island photo was taken/published in 2006? That couldn't really be the first time someone's did selective color on a London bus cruising past Parliament, can it? I would think Temple Island have set themselves up for a rude surprise.
posted by Western Infidels at 7:42 AM on January 26, 2012


That couldn't really be the first time someone's did selective color on a London bus cruising past Parliament, can it?

I'm going with no (1962).

I don't know if 'make everything black and white except the big red thing' even qualifies as an idea, it's the burger in a bun of photography (but not as tasty). Now if the judge had ruled that they should both be fined on grounds of bad taste...
posted by titus-g at 7:53 AM on January 26, 2012 [2 favorites]


er... just realised that the rest of the pic I posted wasn't actually monochrome, damn you English weather!
posted by titus-g at 7:54 AM on January 26, 2012 [4 favorites]


I find this a fascinating judgment, but I wouldn't want to speculate on it before I finish reading the whole PDF. From scanning the first few entries, however, it made me laugh that the claimant admits to nicking the technique of a red object on a greyscale background from... Schindler's List! I also wonder (as always when these kinds of stories crop up) how Sherrie Levine would fare these days.

...the story is actually that if you have taken some photos already and spend enough time looking through others' photos, you may find an occasional similarity that will net you a cash settlement...

It looks like it was established that they knew each other and that the defendant was aware of the claimant's image (...the two had previously been to court when they had failed to reach a licensing agreement over [defendant]'s previous infringement of [claimant]'s copyright...[!!]) but I see what you mean.

I guess this means my cool plan to exhibit a shark in a lucite block in the UK should be put on hold.

I meant to point this out in the earlier Hirst thread, localroger, but that famous shark is not encased in lucite but suspended in formaldehyde. So I say go ahead with your plan!

IANAL

posted by Chichibio at 7:58 AM on January 26, 2012 [1 favorite]


Step one - Find gallery space for "Camera Strap Variations"

Step three - Profit
posted by Kid Charlemagne at 8:32 AM on January 26, 2012 [1 favorite]


salmacisin: in what sense is US law at all relevant here?
US legal decisions were used as arguments in the trial and are referenced in the judge's decision (section 31). Which strikes me as very odd. But I'm not a lawyer.

The decision in question ("...the proposition that copying a photograph does not require a facsimile reproduction, it is enough to recreate the scene or a substantial part of it.") strikes me as utter nonsense, a notion that opens the door to an infinite string of subjective baloney legal battles exactly like this one.
posted by Western Infidels at 8:34 AM on January 26, 2012


The UK Copyright Service says that there may be a copyright violation where the item is:

"substantially similar in design, structure or content, to the degree that it can be said that the work was copied or adapted from your original, rather than simply a similar idea or concept."

So in this case where the defense acknowledge that they were attempting to produce a copy of the original that does not infringe it seems reasonable to make a judgement call on whether they succeeded. In this case the judge provided a number of reasons that they did not. The judge also pointed to a number of other options that the defendant could have taken instead of trying to replicate this photo to avoid the licensing fee.

Also, in this case, the defendants did not try to defend this as an act of independent creation, which would have not infringed:

Where it can be shown that two similar works were produced independently of one another, there will be no infringement of copyright.

Copyright cases often involve an assessment as to whether the defendant's work is similar enough to be copyright infringement.
posted by BigYesh 2 at 9:02 AM on January 26, 2012


Some say the judgment is “nuanced” and that we should read the judgment ourselves rather than accept the headline-grade summary. I do think that's wise advice.

But for myself, as a non-lawyer, at least, the judgment itself in this case seems just as silly as the headline implies.

Right up front, the judge acknowledges that the claimant's photo is derivative, being a common tourist shot tarted up with a Photoshop cliché that the claimant copied from a popular film (4,5). Right up front, he acknowledges that the defendant's picture was created from original work, that it's obviously different from the claimant's, and that it was created specifically to adhere to the letter of the law and so avoid infringement (10). Later this fact – that the defendant went to some trouble to avoid breaking the law – is used as an argument for the defendant's guilt (68).

The judge decides to base his approach to the case on the principle that a work can be infringing even if it looks nothing like the original (30), a principle which pretty much puts the judge in the position of playing art critic. And he does, spending many, many points elliptically explaining that the differences between the pictures don't matter, but the similarities do (56).

The judge notes that there could be brand confusion because the claimant's image and the defendant's image are often in close proximity in tourist-trap store shelves – an argument which seems like it could make some sense – but he says that has no bearing on the case (71)!

Overall, the judge's argument is that the thought process that led to the product matters more than the product itself. That copyright infringement is, in this case, a thought crime.

I think the hysteria of the headline summary is warranted.
posted by Western Infidels at 9:16 AM on January 26, 2012 [7 favorites]


Righthaven gave up too early. Copyright trolling is going to be the boom industry of the '10s.
posted by evilmidnightbomberwhatbombsatmidnight at 12:46 PM on January 26, 2012


Wait till the judge hears about "genres". They even put the similarly plotted vampire books next to each other in the book shop!

Did a year of IP at Cambridge for my law degree. This is also a terrible judgement in my view, and Western Infidels summarises why excellently.
posted by jaduncan at 1:56 PM on January 26, 2012 [2 favorites]


It kinda seems to me like the defense's argument amounts to "Terry Cotter and the Conjurer's Crystal is an original work, because even though all I did was copy Rowling's book and change the character names, I retyped it myself instead of photocopying it."
posted by jacquilynne at 3:44 PM on January 26, 2012 [2 favorites]


Don't think about copyright law too hard; your head will explode.

That may be a feature of copyright law; no one whose head has not exploded knows for sure.
posted by jepler at 3:59 PM on January 26, 2012


Right up front, he acknowledges that the defendant's picture was created from original work, that it's obviously different from the claimant's, and that it was created specifically to adhere to the letter of the law and so avoid infringement (10). Later this fact – that the defendant went to some trouble to avoid breaking the law – is used as an argument for the defendant's guilt (68).

I think the defining fact here is that the defendant's goal was to get a photo that was as close as possible to the original without infringing. His intent was to copy, he knew an exact copy would infringe the copyright of the original, and attempted to use technicalities to get around it. He wasn't just some guy taking a snapshot.

This looks to me like a driver knowing that a police officer won't pull someone over unless they are doing 10 mph over the limit. So the driver goes past the police officer doing 9.9999 mph over, and holds up a sign that says "what are you going to do about it?" Then the police officer pulls him over and says "I round up".
posted by gjc at 5:51 PM on January 26, 2012


I don't agree with that analogy, gjc. If it's accurate that the defendants attempted to comply with the letter of the law (by staging their own photographs, for instance), then it's more like going exactly the speed limit but being fined anyway because in the court's opinion the road conditions were such that the posted speed was unsafe.

(According to Western Infidels's post, the judge did find that the photo "was created specifically to adhere to the letter of the law and so avoid infringement")

I'd rather live in a world where it's possible to have an unlimited number of paintings called "still life with lemon" that do not infringe on one another, even if some of them are, well, not imbued with a great deal of inspiration. A world where there are more than two or three different "original" photos of the Lincoln memorial, rather than a handful of original photos and a million tourists^Winfringers.
posted by jepler at 6:42 PM on January 26, 2012 [1 favorite]


This seems like the crux to me:
22. The question is answered by drawing attention to three aspects in which there is room for originality in photography:
i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;

ii) Residing in the creation of the scene to be photographed;

iii) Deriving from being in the right place at the right time.
It is an interesting issue. It seems to me that the reasoning in this case would prohibit someone from, say, going to the site that inspired a landscape watercolor and attempting to copy the brushstrokes, paint choices, etc. that the original artist used to create the first painting. But that doesn't seem terribly wrong to me.
posted by dixiecupdrinking at 6:43 PM on January 26, 2012 [1 favorite]


I think the defining fact here is that the defendant's goal was to get a photo that was as close as possible to the original without infringing.

This way lies madness. Getting close to breaking the law doesn't mean you broke the law.
posted by smackfu at 6:46 PM on January 26, 2012 [1 favorite]


gjc, a better analogy would be that the would-be speeder was going 59.99 miles per hour in a 60 MPH zone and got ticketed because the cop knew he really, really intended to speed.
posted by localroger at 5:35 AM on January 27, 2012 [1 favorite]


Intention to stay within the law is not prima facie evidence of anything but a respect for the law. Close to the margins of legality is still legal. This is like convicting someone who is under the drunk driving limit because they drunk one glass intentionally as they knew this would be legal but the court doesn't like drink drivers.

The law requires the actus reus (guilty act) and the mens rea (guilty mind). This defendant has neither.
posted by jaduncan at 7:32 AM on January 27, 2012


The law requires the actus reus (guilty act) and the mens rea (guilty mind). This defendant has neither.

Isn't copyright infringement strict liability? Plus this isn't a crime, it's a civil action.
posted by dixiecupdrinking at 9:45 AM on January 27, 2012


What strikes me as interesting in this case, aside from the whole "Hey, let's copyright *ideas* now" aspect of it, is people arguing that the history between the two parties matters in any way, shape or form. That would imply that somebody ELSE who wanted to sell mugs with a red bus on an otherwise greyscale landscape including Parliament wouldn't have gotten dinged with copyright violation in this case. Which just makes no sense. I hope a whole shitload of British photographers go out and create their own versions of this photo in protest of this ruling. I could see a lot of creative takes on it too, not just red buses in front of greyscale parliament.

Also, people create shots "inspired" by other photographers' work all the time. This seems like a SERIOUSLY slippery slope, indeed.
posted by antifuse at 12:43 PM on January 31, 2012 [1 favorite]


You Can’t Copyright Porn, Harassed BitTorrent Defendant Insists
"Does filmed sex promote scientific progress or constitute useful art?"
(Yes, I realize the American formulation of copyright differs from the British, but this thread still seems the most appropriate)
posted by jeffburdges at 4:55 PM on February 6, 2012


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