PetaPixel

Create a Similarly Composed Photo in the UK, Risk Copyright Infringement

If you’re a photographer in the UK, you might want to think twice about shooting and selling a photograph that has a similar composition to an existing photo. Souvenir company Temple Island Collection has won a copyright infringement case against tea company New English Teas after a photo of a red London bus was used on tea packaging. Photo copyright expert and lawyer Charles Swan states,

His honour Judge Birss QC decided that a photograph of a red London bus against a black and white background of Big Ben and the Houses of Parliament, with a blank sky, was similar enough to another photograph of the same subject matter to infringe copyright.

The decision is perhaps surprising, given the commonplace subject matter of the photographs. The judge himself admitted that he found it a difficult question, but in the end he decided that a substantial part of photograph one [Temple Island’s image, top] had been reproduced in photograph two [New English Teas’, bottom].

Although the photo itself wasn’t copied, the judge ruled that the similarity of the ‘visual contrast’ of the red bus and B&W background infringed on the original photographer’s ‘intellectual creation’. The case is reminiscent of photographer David LaChapelle’s lawsuit against Rihanna for infringing upon his style in one of her music videos. Rihanna ended up paying an undisclosed sum of money to LaChapelle to settle the case.

Photographers Face Copyright Threat after Shock Ruling [Amateur Photographer]


 
  • Anonymous

    A lawyer for New English Teas claimed:
    “The only way to protect an artists copyright is to have colour changing buses and to re-site London’s landmarks once every six months.” Prime minister David Cameron has promised to look into this option once the Olympics and the recession are over.

    The problem here is that It’s about the least original Idea known to anyone with a digital camera and a computer who’s visited London (or seen it on TV). This will probably mean the end of the London souvenir industry as we know it.

    What will China do?

  • Sinmeta

    This is a ridiculous decision.  Not only are these two photographs different compositionally, but millions of subjects are photographed every day by millions of people, in slightly to very different ways.  Each photographer should be entitled to copyright his/her own photograph based on their own work and vision.  Perhaps the only exception to this should be when two photographs are almost identical, which the two at issue in this case most certainly are not.

  • http://www.seansmyth.ie/ Sean Smyth

    Fucking hell this is ridiculous. 

    This is a stupid if applied to a simple headshot portait. The subject matter is more or less the same but the composition is going to be similar no matter what you do. High key backdrop used in loads of portraits.

    Same as the bus then. The bus is, I’m sure, a different bus in both photos and the background is similar but different. 

    Will people start getting sued for portraits that look similar to someone elses?!

  • Gary Orona

    So this would mean that we need to track down the very first person to shoot Mesa Arch in Canyonlands National Park in Utah because there have been about 10,000 professional photographers who’ve shot their photos from the exact same spot, at the exact time of day as the sun rises, with the exact same warm glow under the rocks… That’s going to be one hell of a lawsuit! Sorry Peter Lik and all you others, you’re going to have to give your profits back… whoever this first guy was, he owns that rock.

    Wow.

  • Dave

    Lol, what?

  • Mantis

    What a load of crap.

  • http://blog.ahles.nl/ Patrick Ahles

    Totally ridiculous. If the judge found it to difficult, he shouldn’t have decided!

  • http://www.facebook.com/people/Kathleen-Grace/1504717315 Kathleen Grace

    Good for the judge.  The issue isn’t so much that the picture is similar, it’s that the red bus against the black and white background.  That style was copied.  If they’d even made the background darker or more contrasted, or even darkened the sky or added clouds.  That photo looks like the same photographer’s work just a different version of the scene.  And that’s where the copyright violation comes from.  The exposures and color reds are the same.  I never would have assumed it was two different photographers.  How on earth would anyone know the difference.

  • http://www.seansmyth.ie/ Sean Smyth

    Surely you can’t “own” selective colour though! I mean, it’s a very, very common thing to do with yellow taxis in NY or the red bus in this scene for example. 

    Sure, no denying that it looks similar but I don’t think it’s fair to sue over it.

  • Adam

    THE HELL???

  • Anne

    So, only 1 person can take 1 photo of any certain subject in the world and that’s it?  That’s crazy!

  • http://www.markjp.com Mark J P

    Wow this is really shocking.

    Sure the images are very similar but then I’ve seen countless other similar images over the years. I’m not a lawyer but I struggle to understand how such a common sight could be defended against copyright in this way – copyright the image sure, but other images that bear a resemblance?

    I’m rather shocked the case was won. I hope this isn’t the beginning of a trend as it’s just silly.

  • Nige

    Have I been asleep and it’s now April 1st

  • Anonymous

    I personally think the judge ruled unfairly. I can see where it could be an issue if they were more alike, but they are from different vantage points, heck the one has the water in it. This could get sticky for photographers, even though each photographers eye and style is different they could still end up getting pretty close images of another (specifically of worldwide monuments and popular places) without even meaning to. 

  • Anonymous

    Utter bullshit.  Makes me embarrassed to be British.

  • http://brooksierox.blogspot.com/ Shannon Brooks

    i agree!

  • http://www.facebook.com/people/Kathleen-Grace/1504717315 Kathleen Grace

    This is beyond similar.  It’s so very similar that you’d never know another photog did the second work.  That is the issue.  Why did they use the same tone black and white background?  That they even got the same tone of black and white on the buildings?  Sure, they used a mask and the black and white adjustment in photoshop.  What are the odds it would be so much the same if it weren’t copied.  It simply looks like the original photographer loaded his gear and moved up the stairs onto the roadway to take a second close-up view.  No, you can’t own selective color, but good heavens, really, don’t you think it’s the same photographer.  It’s the stylizing that is so utterly similar.  

  • Sinmeta

    Oh, I forgot to mention, I look forward to the news when an appeals court has overturned this decision.

  • Janez

    well this two photographers used a different lens. One went with a wide lens and the other with a tele – this are two different approaches in making an image – two different styles. 

  • Marius M

    I see where it goes:
    Judge  decided that a photograph of a MOON, in a sky with some stars, was similar enough to another photograph of the same subject matter to infringe copyright.

  • Az Photo Mac

    I always thought the legal profession knew nothing about the real world… this just proves it.

  • http://www.facebook.com/samueljerichow Samuel Jerichow

    First: Using less capitals in the headline would still be ok. Or are capitals the new exclamation marks?
    Second: Interesting where people wanna sue each other, as if that’s their life content. No b/w background behind red bus anymore, never ever!? That’s not intellectual creation, thats creative reproduction. Big difference. Such people also patent colors and sue everyone who use “theirs” for a website. Makes me wanna kick ass instantly.

  • Howie

    The only time I could ever see copyright (or rather trademark) infringement being the case with these two images would be if one company tried to muscle in on another’s customer base by using similar images in an attempt to confuse buyers and thus ‘steal’ their custom assuming both companies were trading in exactly the same market – which it appears these two are not. Stupid decision.

  • jeff hubbard

    An utterly atrocious decision. Surely this must be appealed so the precedent is nullified.

  • http://www.thealders.net/blogs Doug Alder

    Don’t forget this is England where you can be successfully sued for saying homeopathy, or chiropractic, are woo (which they are).

  • http://dennisrito.com/ dennisrito

    This is ridiculous! These are
    just two different interpretations (POV) of the photographers involved
    and neither it looks identical in terms of composition.

  • http://twitter.com/zak Zak Henry

    I’m ok with this.

  • Anonymous

    I’m sure that red bus company doesn’t appreciate being exploited in the midst of all of this. They should sue both photographers, just to be fair.

  • 9inchnail

    Stupid comment, the judge has to make a decision. He can’t just say “I dunno, leame alone”. That would be the easiest job ever if he could actually do that.

  • http://www.digirookstudio.com/ Digirookstudio

    Wow, This is ridiculous!

  • 9inchnail

    Stupid comment, the judge has to make a decision. He can’t just say “I dunno, leame alone”. That would be the easiest job ever if he could actually do that.

  • 9inchnail

    The photographer should be glad he wasn’t arrested or shot by the police. Taking photos in public, of the public transit system even… gotta be a terrorist. Glad, I’m not living in the UK.

  • Blue_healer

    Everyone should have the right to improve on a work.

  • http://dennisrito.com/ Dennis Rito
  • Gust

    So if I take a photo of someone against a white background, who’s done so before, the other photographer may sue me?! Awesome…

  • Steve

    This is interesting.  If I was the photographer who made the original photo, I wouldn’t be pleased that someone had been so heavily influenced by my photo.  I don’t think this ruling is correct but I have seen some photos that are almost identical copies and this should apply to them.  Don’t forget that this is for commercial use, there’s no problem if people are taking photos just for their own non-profit use.

    This should probably be overruled but there should be more protection for when a photographer gets too close to the original.  I think the music industry does this quite well.  The composer can get paid for samples of their music but they have to get consent if too much of the original composition is used.

    It would be good if something similar could be applied to photography.

  • Phil

    I don’t think you understand Kathleen. That style has been around for a very loooooooong time. Like the author mentioned, anyone with a digicam and a computer who lives in the area or has visited it has probably come up with a similar concept. Even the person who took the original shot probably saw it from someone else. This is not an ORIGINAL concept. What a copyright protects is the use of the actual picture or an identical reproduction for commercial use. The judge has gotten this all wrong. Copyright can’t be used to subvert inspiration. This will surely be overturned in appeal.

  • http://blog.ahles.nl/ Patrick Ahles

    Looks who’s giving a stupid comment! If the judge feels he is not competent to decide on the matter, he could have decided more research was needed to come to an informed decision. Now you have a judge who apparently doesn’t know squat about photography deciding something which could have far reaching consequences for us photographers!

  • Anonymous

    To be honest the chiropractitioners lost

  • Joshua Pierson

    The issue I have with all of this, which despite my distaste for modern copyright culture, makes me lean toward siding with the judge is this text from the full article:
    ‘As creator of the Red Bus image, and originators of the product concept, we gave New England Teas the opportunity to license with us and work collaboratively, but this was declined.’

    If the tea company was presented with that photo and instead of licensing it, they figured they could just replicate it then yes, I think the judge made the right decision. If on the other hand the licensing offer came after the original creator noticed something they felt to be substantively similar, then balls to that. This is the same reason that publishers and production companies will refuse to look at unsolicited/unrepresented manuscripts; they don’t wish to open themselves up to litigation in the case that a materially similar product is created to one with which hey have been made familiar. If this case had nothing to do with commercial interests, I think it would be a different story altogether, but as it stands, I think the plaintiff certainly had the right to act.

  • Anonymous

    Copyright and IP law is coming to head in the 21st Century, especially in the creative industry. We’ve reach a point where there is no such thing as “original”, most landmarks have been documented from every angle, music is comprised of only so many notes and rhythmic patterns. So what are we going to do in the 21st Century? Anyone shooting a photograph or creating a musical composition or drawing will have to clear 175+ years of copyrighted work?
    On top of that the US Congress is looking to re-register works that are in the public domain. At what point does it get ridiculous?

  • Limefotographic

    I take it this now means that there is a copyright on ideas, so no photographer can be inspired and every image must now be 100% original……

    Yeah, good luck with that!

  • Tabby Caat

    This is not setting a precedent, it’s following one.  See the case of Getty vs Fatboy Slim.  The key feature in both cases is that there was a photo they wanted to use, but BALKED at paying the appropriate licensing fee, then COPIED the essential elements of the photo in a new photo.  http://www.allbusiness.com/retail-trade/miscellaneous-retail-retail-stores-not/4450502-1.html
    http://business.highbeam.com/2025/article-1G1-93613520/getty-collects-fatboy-slim-infringement

    If you see a distinctive photo, and instead of licensing it you decide to save some money and hire someone else to create a copy which contains all the distinctive features of the first photo, you too could be violating the copyright of the original photo.   On the other hand, if you use the first photo as inspiration but create your OWN photo with different distinctive features, that’s not a copyright violation.

    One of the key criteria to determine if what you are doing is if you are damaging the financial value of the first photo.  You do this by refusing to license the first photo – you are refusing to pay for their creative work.  Instead, you copied their creative work.  Thus they were financially harmed, and you violated copyright.

    Taking an iconic photo of a landscape from the same viewpoint as a previous photographer isn’t the same thing.  There needs to be something extra about the photo that is specifically creative, and most importantly you have to have had an opportunity to license the existing image but thought you would “save some money” by making a copy instead.  Don’t make a copy!  Make something NEW.  If you want something “just like that one over there” then you are copying!

  • http://twitter.com/akrishnamraju I’m Krishnam

    This is real bad. Both photos are different and a photograph should never be judged on how it is composted. Composition is post procession art and most of the art is similar in nature especially in Photography the composition effects are similar but on different photographs.

  • Realist

    This is the beginning of the end. In this case, nobody can ever take any photos of London anymore, because pretty much all of London has been photographed numerous times already. 

    I think I have seen at least a dozen of B&W pictures of Westminster Bridge with a red coloured bus driving by. Should all of those 12 photographers be prosecuted then? The insanity…

  • Oshead

    Should the owners of the bus claim the owner of the copyright for using their property a commercial photograph.

  • Alan Freshwater

    People have been composing paintings and photos after the style of famous artists for years.  It is a homage as much as style theft.  The only reason this went to Court was because someone was making money out of it.  

  • Crawfmich

    Defending a copyrighted image is one thing,but how can you prevent shooting in the same ‘style’.

  • Worldsgonemad

    I wonder whether this commercially available photo from Jurek Nems was inspired by the Temple Island Collection, or did Temple Island copy Jurek’s idea? 
    http://www.johnlewis.com/253454/Product.aspx 

  • Worldsgonemad

    My mistake, should have read the article first. Doh!