UK tribunal rejects application for interim rights under Electronic Communications Code
Out-Law News | 19 Jan 2012 | 4:34 pm | 6 min. read
The Court said that the way a photo is composed can determine whether it is sufficiently original to be considered a creation worthy of copyright protection. One factor that can determine whether the composition of a photo is original is in the way it has been manipulated in post-production, Mr Justice Birss QC said in his ruling.
"The composition of a photograph is capable of being a source of originality," the judge said.
"The composition of an image will certainly derive from the 'angle of shot' ... but also from the field of view, from elements which the photographer may have created and from elements arising from being at the right place at the right time," he said. "The resulting composition is capable of being the aggregate result of all these factors which will differ by degrees in different cases."
"Ultimately however the composition of the image can be the product of the skill and labour (or intellectual creation) of a photographer and it seems to me that skill and labour/intellectual creation directed to that end can give rise to copyright," he said.
"The present case also illustrates what could be a fourth category which could be added to the three given [previously]... Mr Fielder's manipulations were not just matters affecting the colouring and contrasts in the image, they also had an effect on the composition itself, since people were removed from the foreground," the judge said.
Mr Justice Birss QC was ruling over a dispute between two souvenir companies. Temple Island Collections Limited had accused New English Teas Limited of breaching its copyright by displaying a digitally manipulated image on gifts New English was selling that was similar to one displayed on goods being sold by Temple Island Collections.
The owner of New English, Nicholas Houghton, took four photographs of London which were digitally manipulated to produce one image of a red London bus against a backdrop of the Houses of Parliament. Colours in the image had been altered to drain the background colours to enhance the red colour of the bus.
Mr Justice Biss QC ruled that the image breached Temple Island's copyright. Temple Island's managing director, Mr Fielder, had previously formed a similar image through digital manipulation of the colours and other features captured in a photo he had taken.
Mr Justice Birss QC said Fielder's manipulated image qualified for copyright protection because of the way it had been composed.
"Plainly [Temple Island's] work is original and I so find. It is the result of Mr Fielder's own intellectual creation both in terms of his choices relating to the basic photograph itself: the precise motif, angle of shot, light and shade, illumination, and exposure and also in terms of his work after the photograph was taken to manipulate the image to satisfy his own visual aesthetic sense," he said.
"The fact that it is a picture combining some iconic symbols of London does not mean the work is not an original work in which copyright subsists. The fact that, to some observers, icons such as Big Ben and a London bus are visual clichés also does not mean no copyright subsists. It plainly does," the judge said in his ruling.
"Mr Fielder's image is not what I will call a mere photograph; by which I mean an image which is nothing more than the result of happening to click his camera in the right place at the right time. I do not need to grapple with the scope of copyright protection arising from such a photograph. Mr Fielder's image could perhaps best be called a photographic work; by which I mean to emphasise that its appearance is the product of deliberate choices and also deliberate manipulations by the author. This includes choosing where to stand and when to click and so on but also includes changes wrought after the basic image had been recorded. The image may look like just another photograph in that location but its appearance derives from more than that," he said.
The judge said that key to his finding was in how Fielder had expressed "skill and labour" in forming his image. This had been achieved through how the image captured the particular placement of features, such as the Houses of Parliament, people and Westminster Bridge, as well as "visual contrasts" between the "bright red bus and the monochrome background, and the other between the blank white sky and the rest of the photograph".
Because Houghton's photos had been manipulated in a similar fashion, New English was in breach of Temple Island's copyright, the judge ruled. He rejected claims by New English that because elements within the image differed from those used in Fielder's image that the company was not in breach of copyright. Claims by New English that a ruling otherwise would result in Temple Island obtaining an unfair "monopoly" in the market were also dismissed.
"I have not found this to be an easy question but I have decided that [New English's] work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of [Temple Island's] work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of clichéd London icons," Mr Justice Birss QC ruled.
"Although the techniques used by Mr Fielder to achieve the effect he did may have been simple, the result has an aesthetic quality about it which is the product of his own work. The blank sky serves to emphasise the buildings and gives the whole image a dramatic appearance and the bright red bus stands out even more prominently. This has been reproduced".
"The basic composition of the image has the Routemaster [bus] driving from right to left on the bridge but there is more to it than that. The bus is actually framed by the building. Although the framing is a little different in [New English's image], to my eye the essence of the framing effect has been reproduced. Although the bus is larger in [New English's image] than [in Temple Island's image], in both images the bus roughly in scale with the facade of the Houses of Parliament. Also the riverside facade of the building is a prominent feature. There are no other vehicles clearly visible and although there are some small people visible they are not prominent. This all gives the image an element of simplicity and clarity," the judge said.
The fact that New English had provided evidence that other images existed featuring some of the same landmarks contained in Fielder's photo only demonstrated that it was possible to capture a similar image to Fielder's without infringing copyright, the judge said.
"The collection of other similar works relied on by [New English] have worked against them because the collection has served to emphasise how different ostensibly independent expressions of the same idea actually look," Mr Justice Birss QC said.
"I sympathise with Mr Houghton in his wish to use an image of London landmarks. He is free to do so. There are entirely independent images of the same landmarks available to be used which predate publication of Mr Fielder's picture. But [New English] do not want to use those, no doubt for their own good reasons. Perhaps they did not look as attractive as [Temple Island's] image? [New English] went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated".
"Mr Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe. It may or may not have the same appealing qualities as the [Temple Island] image. Even if it did they would be the result of independent skill and labour employed by the independent photographer. Again however that is not what happened," the judge said.
"This ruling will be welcomed by photographers because it makes it clear that copyright in a photo of a well known scene or a building can nevertheless subsist in the aspects of a photo which make the photo distinctive – such as the interesting way it is composed and then manipulated in Photoshop – and the Judge found here that the defendant’s photo had copied a substantial part of the distinctive aspects of the claimant’s," said Kim Walker, an intellectual property law expert at Pinsent Masons, the law firm behind Out-Law.com.
UK tribunal rejects application for interim rights under Electronic Communications Code