Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.

Wednesday, 1 February 2012

The Photographer of the Westminster Omnibus

Now and again an intellectual property case will result in a decision that causes considerable head scratching within the IP profession. Perhaps more commonly these days such a decision will cause wider confusion and outrage in the online community, especially those parts of it which espouse a sceptical attitude towards IP. In Temple Island Collections v New English Teas [2012] EWPCC 1 HHJ Birss of the Patents County Court seems to have achieved the impressive feat of delivering a judgment that does both.

The case concerned a photograph showing a red double-decker London bus against a monochrome background of the Houses of Parliament. Skimming slightly over earlier litigation, the defendant had declined to licence the claimant's image and instead had sought to arrange a version taken independently. The claimant then asserted that the second version of the image infringed its copyright in the original. HHJ Birss held that it did, even though the second image was a recreation rather than a copy as such of the first.

To say that this decision has caused consternation would be putting it mildly. Reports on the case at sites such as Amateur Photographer and Boing Boing have seized upon the idea that somehow this judgment will stop photographers from taking pictures that replicate any prior similar image and it has been characterised as a precedent that will result in a monumental rights–grab by the owners of large photographic portfolios. Within the profession the response has been somewhat more muted but nonetheless respected commentators have expressed some concern and surprise at the decision. In particular, as Jane Lambert explains in an excellent post at NIPClaw, it seems at first sight hard to reconcile the decision in this case with that of Mr Justice Floyd in Creation Records v News Group Newspapers [1997] EWHC Ch 370. A measure of the interest that this case has given rise to is seen by the way that the 1709 Blog has organised a seminar on the case within weeks of judgement being handed down and to be addressed by leading Counsel for the claimant.

To take the more alarmed views first, it would perhaps have helped if some of the commentators on the case had taken the trouble to read the judgment. HHJ Birss goes to considerable effort to explain how narrow his decision actually it is. To begin with, there is no suggestion that if two people standing next to one another take the same photograph the one who pressed the shutter momentarily later will somehow be infringing the copyright in the photograph taken earlier. Copyright infringement requires copying, and although such copying maybe indirect or even unconscious it is still necessary to show a causal link between the original work and the allegedly infringing copy.

But what about the suggestion that this decision means that any photograph of a bus on Westminster Bridge with the Houses of Parliament in the background infringes the copyright in Temple Islands' image? After all, there are plenty of earlier such photographs. This issue was addressed by HHJ Birss at paragraphs 17 to 29 of his judgment. To somewhat paraphrase the judge’s argument, where a picture is taken of a commonly-photographed scene then, although that picture will no doubt enjoy copyright, the only aspects of that picture whose copyright might be infringed by another, similar image are those where the photographer has achieved originality.

As he explains at paragraph 22 such originality may arise from technical skill in photography (e.g. composition), the staging of a particular scene or from the simple fact of being in the right place at the right time. In other words, although a commonplace photograph will be protected by copyright against simple copying, if there is nothing distinctive about it in comparison with other, similar photographs then there is no copyright in anything distinctive and original that will be infringed by someone taking yet another similar photograph. But if the photograph shows original elements then those elements will be protected by copyright against specific imitation.

As such, neither casually snapping tourists nor enthusiastic photographers need worry about being sued for copyright infringement if they happen to take a photograph of a bus in front of Parliament. HHJ Birss found here that the claimants had a photograph with identifiable specific original features; as he explains at paragraphs 51 to 54 there are particular elements of composition and visual processing that he found to be original in that image. On that basis, given that it was clear from the facts that the defendant had set out to recreate the claimant's image there was a clear causal link between the two and the original elements of the first image had been reproduced in the second. The defendant's image thus infringed copyright in the claimant's.

Put that way the decision seems less unreasonable and the more dramatic claims of what it might prevent clearly have no basis in fact or law. But nonetheless the decision does still give rise to concerns, some legal and some practical. In particular, how does one reconcile it with Creation Records?

Creation Records involved the unauthorised photography of a temporary arrangement of items set up for the cover of a new album by Oasis. The allegedly infringing image was taken by a photographer who had inveigled himself into the main photo session and it was taken alongside the “original" image. As explained at paragraph 3 of Mr Justice Floyd's judgement the unauthorised photographer was standing some 15 to 20 feet to the left of the official one and they were both taking photos at the same time. The question of whether the unofficial photograph infringed the official one was dealt with by the judge very quickly at paragraph 15:

“Next, Mr Merriman contended that Mr Seeburg's photograph was itself a copy of the official photograph taken by Mr Jones, regardless of the order in which the two were taken. I do not see how that can be argued. If the subject matter is not itself copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other. Of course copyright subsists in the official photograph and if it were the only source of the scene it would be an infringement to copy that, either by a direct copying process or by the scene being recreated and a fresh photograph taken of that recreation. But it is a basic proposition of copyright law that two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are. Nothing in Bauman v Fussell [1978] R.P.C. 485 is inconsistent with this.”

The judge’s reference to Bauman v Fussell relates to a case where a painter painted a picture inspired by a photograph, in which it was held that the painting – not a direct copy – did not infringe the copyright in the original photograph. What is more of note is that Mr Justice Floyd specifically addresses the situation where a photograph is restaged and retaken and holds that this is equivalent to direct copying.

It is therefore clear that the situation in Creation Records is rather different to that in Temple Island. This was not the re-enactment or restaging of a photograph but rather an example of simultaneous taking of pictures. Indeed, if one goes on to read the full judgement in Creation Records the bulk of the legal argument was taken up either by attempts to establish that the staged scene being photographed somehow enjoyed its own copyright (unsuccessful) or that there was a duty of confidentiality breached by the unofficial photographer (successful). Although superficially similar in that they both involve one photograph alleged to be a copy of the other, the manner in which the second photograph came about is quite different in the two cases and there is in fact little in Creation Records relevant to Temple Island beyond dicta that actually supports HHJ Birss’ decision in the latter. Indeed, it may be that this was such common ground between the parties and so obvious to the judge that neither he nor counsel thought it necessary to refer to Creation Records, hence explaining its apparently surprising omission from the judgement.

HHJ Birss’ decision thus appears to be legally sound, or at the very least not in conflict with well-established law in the area. But that doesn't mean that it's not problematic. Even on the relatively narrow application that I have outlined above it is still possible to see how a photographer could find himself or herself facing threats of legal action over a seemingly commonplace image.

I am a moderately keen photographer myself and I own a number of books on the subject. Many photographic books and courses clearly aim to teach techniques that involve some level of imitation of the styles and methods of established photographers. For that matter, if as an aspiring photographer you see a particularly striking image it is natural to want to work out how it was taken and to seek to replicate it, or at least some of the more interesting and novel aspects of it.

I can provide a personal example of this. Consider the photograph below, of the Forth Rail Bridge. I consider it to be one of my better photographs and indeed it is by far and away the most heavily viewed picture on my Flickr account; it is also the only picture that anybody else has ever asked to use.

Forth Rail Bridge

I was inspired to take the picture after I saw similar images in photographic shops in and around Edinburgh. The bridge was shown at or near sunset and the sea had an unusual, almost misty effect that I recognised as being achieved through a long exposure. I thought it would be interesting to try to replicate these elements of the images so I went down to South Queensferry, set up my tripod near the south end of the bridge, and using a graduated neutral density filter I took a number of photographs. After some effort with Photoshop to clean the pictures up and correct the colour I achieve the results above. I don't think that it is perfect; it is not quite as sharp as I would like and would not stand much enlargement, and given the date at which I took it the bridge itself is festooned with scaffolding. But I could not deny that there was a causal link between it and the earlier photographs that had inspired me. Were there a single, specific image with these qualities that it could be shown I had set out to replicate, then on the basis of Temple Island I would be held to have infringed its copyright.

If the decision in Temple Island was such as to deter photographers like me from carrying out such exercises for fear of liability for copyright infringement then I would be concerned at the effect upon the hobby. Photography is in large part a skill that you learn through practice and imitation and I would not want to think that photographers seeking to develop their skills might be deterred from doing so. As a lawyer I am aware that in practice it is commercial exploitation that is likely to attract legal attention but the forthcoming reforms to IP litigation procedure following the Hargreaves Report will substantially lower the barrier to this. Although I am generally very much in favour of the forthcoming Small Claims track for copyright disputes – I know several photographers who until now have had little recourse against blatant copying and commercial reuse of their images – I would be worried if it led to a spate of threats of proceedings in respect of what one might term innocently imitative images.