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Photographers face copyright threat after shock court ruling

Discussion in 'News - Discussion' started by CSBC, Jan 24, 2012.

  1. TheFatControlleR

    TheFatControlleR :Devil's Advocaat: Forum Admin

    'Public domain' was the wrong term for my intent, 'public space' is more what I meant there. My bad. :(

    Let's hope some smug lawyer doesn't try and file a suit RE residual rights from the estates of Durrant, Curtis & Scott/London Transport and /or Charlie Barry/The State for design and facsimile copyright of the bus and Palace of Westminster. Bound to be some judge willing to agree. ;)
  2. Benchista

    Benchista Which Tyler

    Whatever you call it, the space it was in was one in which copyright conditions would've been particularly evident and well-understood by the infringer; that's why I think this case is rather particular, and the decisions correct.
  3. TheFatControlleR

    TheFatControlleR :Devil's Advocaat: Forum Admin

    I think out threads are crossed, but I'll leave it there.
  4. MickLL

    MickLL Well-Known Member

    Reading this thread makes me wonder if I've lost my power of reasoning.

    There are posts from people who seem not to have read the judgement and if they have then its meaning has completely passed them by.

    There are others who are building castles (all photography is doomed), again apparently without having read or understood the judgement.

    Finally there are those who, whatever facts are put in front of them, insist on ignoring them and continuing along their chosen path.

    A typical thread I suppose. ;);)

    To me the situation is quite clear.

    Company A produced an 'iconic' image that it used on its souvenirs. The image became so well known that others (read the judgement) were prepared to pay in order to use it. The image thus acquired both notoriety and commercial value.

    Company B wanted to use the image on its products (tea mostly) and copied it. The author of the original image complained and a judge decided that company B had infringed copyright and could not use the copy image. Company B agreed to pay company A royalties on their use of the copy image and also to enter into a licence to use the original image produced and 'owned' by company A. AFAIK this 'first copy' has not been published in connection with the case.

    Company B then changed its mind about buying a licence and set out to make a second copy of said 'iconic' image. Company B acted throughout as if it agreed that company A had rights over the image and deliberately set out to avoid infringing the copyright. They did that by using an unnecessarily complex PhotoShop workflow and by using four (if memory serves) different images. Throughout they took advice as whether they had 'done enough' to circumvent the previous ruling that they had infringed the rights of Company A.

    In short it's a very clear case of one company deliberately and systematically ripping off the idea of another company for commercial gain.

    Finally it needs to be understood (read the judgement again) that copyright CAN apply to a work of art. In this case the said iconic image seems to have been regarded as a work of art.

    Nothing happened accidentally. Company A set out to create a 'work of art' that it could use on its products. The picture didn't happen by chance it was created and manipulated by its author. He did it so successfully that it became famous and was used (after appropriate payment) by companies other than A. Company B then tried to avoid payment by copying said 'work of art'.

    I'm with Nick. I think that it's a good judgement that has no impact whatever on the ordinary photographer but just might cause the dishonest to pause if they are asked to rip of the ideas of someone else.

  5. daft_biker

    daft_biker Action Man!

    Photographers shocked by common sense ruling in UK court

    It's just the reaction that can be expected once people have read the thread title though.
  6. Mark

    Mark Well-Known Member

    Mick, you've hit the nail slap bang on the head.

    The problem is not restricted to this forum though, IMHO the good folk here are actually considerably better than many others! I've found that in recent years people seem to have adopted the politicians' art of talking (and listening) in soundbites. Some people appear to have a real problem with actually opening their minds to new ideas, conducting rudimentary research, and even basic skills like 'reading the question' seem to have been lost.

    Various explanations (excuses?) are put forward...

    The problem is amplified when it occurs "in the real world". In my work with SceneThat I often get to hear of photographers who appear to have gone out of their way to make a particular 'political' point or 'prove' a particular bias or stereotype. We all (generally) react badly when a member of the public or an official jumps in with lead boots and yet appear to be willing to do the same based on the most superficial reading of the facts.

    At the risk of ruining your street-cred, I'm with you on this one! ;)
  7. Norman

    Norman Well-Known Member

  8. 0lybacker

    0lybacker In the Stop Bath

    All that said, reading the judgement, re-reading the judgement, the lawyers statement, reading the posts and re-reading them over and over again will not make a bad judgement good, right or proper. As with one or two other recent cases, the Law in the UK seems to be intent of living up to its literary reputation as an Ass as far as practical, every-day living is concerned.

    Sigh ... !
  9. 0lybacker

    0lybacker In the Stop Bath

    The Internet, in many ways, is a wonderful thing, opening up access to all sorts of 'good' things, not just the bad or evil. But it comes with pressures attached - time and space or space and time, whichever.

    So you have a well known site which controversially cuts previously unlimited posts on its Blogs to less than 400 characters, an increasingly popular form of communication which restricts participants to 140 characters or less, the opportunity to research all sorts of subjects, including photographers of the past, let-alone the raft of new (and often just as interesting) photographers posting work on their w/s or Blogs and the opportunity to find, learn and discover more while linking with on-line communities (even those previously unreachable) around the world.

    So, it is kind of understandable that posts might not be carefully read, or fully understood, or the thinking behind them worked out before a - sometimes brief or hasty - 'sound-bite' is sent with a quick click of a mouse! :)
  10. 0lybacker

    0lybacker In the Stop Bath

    ;) and Mr de Bazelgette ... ? :confused::)
  11. MickLL

    MickLL Well-Known Member

    It's this sort of post that I was complaining about.

    I need to be careful here because I made a resolution not to be rude to people and I'm doing quite well so far (I think).

    It may be that you know more law than I do. It may be that you are better qualified to interpret the law than I am and I would be happy to bow to your greater expertise should you have chosen to present your knowledge and/or qualifications.

    It may be that you know more law and you are better qualified to interpret that law than His Honour Judge Birss QC although I find that a smidgeon less plausible.

    It may be that you are more logical than I am or that you have spotted something in your reading of the case that I didn't. Something that causes you to reach a different conclusion. I'd live with that too if you had presented your reasoning.

    However I've carefully read the words of the learned judge (including his summary of the first infringement) and can see no fault in logic or law. He presents his reasoning, presents relevant precedents, draws conclusions and makes a judgement.

    You come along and say he's wrong. No reasoning, no alternative route to that conclusion. Nothing but the bald statement that he's wrong.

    Now for all I know you are the Lord Chancellor in disguise and I really should take note of your opinion but even then I would prefer that you justified that opinion with some facts or logic or anything other than the bald statement that he, the Judge, is wrong.

    Please forgive me for my rant but I really can't take your opinion seriously unless you back it up.

  12. MickLL

    MickLL Well-Known Member

    Street cred? Me? I don't even have thread cred:D

    Happy to be associated with you.

  13. 0lybacker

    0lybacker In the Stop Bath

    I'll let this speak for itself:
    If it catches on, Michael Kenna will make a fortune from his old assistant, Rolf Horne, and Michael Levin, et al. Bill Brandt's Estate will have to sue Kenna, though for the snicket pic! ;)

    And as for anyone who has shot an adobe church or white picket fence after Paul Strand, well ... :rolleyes::p

    I would be the first to support a Judge, ruling in a copyright case, where there had been a clear misuse of an image and the original photographer had had his or her rights infringed. {I've tried to be very careful in the use of words here!} I find it hard to agree that there has been any form of 'passing off' in this case. The Judge may be learned, his opinion considered, but I disagree, especially as I see his decision as setting parameters far too wide: "turns on a disputed qualitative judgment".

    Another key phrase "it reproduces a substantial part of the claimant's work." To this independent viewer's eyes it is plainly not so. (I wonder if the Judge is a photographer in his spare time?)

    In the judgement "Plainly the claimant's work is original and I so find." What part? Does no colour popped Bus on a Bridge exist? {as some of the posters, who may be the ones you complain about have already pointed out} Does no colour popped Bus on Westminster Bridge exist? How does the Court know? What if one is brought forward?

    Here, I feel the Judge undermines his own previous decision "What is behind this case is that the defendants' tea tins and boxes are sold side by side with souvenirs bearing the claimant's image. I have been shown pictures of this in the evidence. There is a hint of an allegation of unfair competition or some sort of confusing similarity of the kind seen in a passing off case. I have ignored that evidence. Whether or not consumers confuse the products of the parties (or their licensees) is not the issue."

    I could probably have a go at finding some other areas that are problematic to me. But hopefully, I have already provided something for you to chew on. Have fun. I gotta go! :)

    The tragedy is, that unless this is taken to Appeal, it starts to open the door for all sorts of wild, 'fishing' suits or 'security attempts' that the posters who are complaining about other posters here, might be the first to raise as a problem!
    Last edited: Jan 28, 2012
  14. P_Stoddart

    P_Stoddart Well-Known Member

    If you read the key breakdown of the judgement It seems to turn on one thing.

    That the defendant knew of the claimant's work.

    The claimant's submitted after been shown image after image of work pre-dating his 2005 image that he had never seen any of those images. :rolleyes:

    Yet we know in the field of art and photography it is not uncommon for photographers to re-imagine previous shots. Given we now live in the digital age avoiding other photographers work both pro and amateur is pretty much impossible.

    One might argue that the defendant image is a improvement on the claimant (I think it is) which again happens all the time in photography and art in general ie photographer A see a shot and goes 'quite nice but I can do better so I have a go myself' photographer B succeeds. But under the logic of this judge that is a infringement. You only have to read point 55-61.

    When you get to point 61 you then have to laugh. :D I quote "But what they cannot have is a southbound Routemaster on Westminster Bridge before the Houses of Parliament"

    He then goes on "at the same angle as the claimant's work on a greyscale background and a white sky, in circumstances where they have admitted seeing the claimant's work."

    The funny thing is the Routemaster in the defendant's shot is NOT at the same angle. It is front on not side on.

    So sorry Mark & MickLL I beg to disagree the judge has not understood photography and how art works. Emulation and re-use of technique is as old as time itself. Clearly the defendant's legal team failed to get this across well enough. Even though they showed how the technique and emulation has been used before the claimant's image even existed.

    If the defendant's appeal I will be shocked if it is not overturned ie not a infringement.
    Last edited: Jan 28, 2012
  15. MickLL

    MickLL Well-Known Member


    I can't deal with general statements and other general disagreements firstly because they are not facts and secondly they are quite irrelevant.

    This case was decided under English Law and only that is relevant. You may wish that the law was different but it's not so when you say that a judgement is wrong you are saying that a judge has misinterpreted the law - and in this case he hasn't.

    Goodness me enough folk on here start shouting if they believe that their images have been 'stolen'. There's really very little difference.

    The first point to make is that the copyright of a photograph rests with the photographer. You have read that ad infinitum on this forum and it's a fact. (Yes I know that there are exceptions but they don't come into play in this case)

    In this case it seems that there was no dispute that the claimant held copyright in his image - just as you hold copyright in yours.

    The dispute was whether the defendant had copied (infringed the copyright of) the claimants image.

    It's the law that one image does NOT have to look identical to another for copyright to have been infringed. Paragraphs 30-35 deal with that so all those who say that there can have been no infringement because the pictures overall look dissimilar are wrong. If the key elements have been copied there is infringement even though, overall, the images look different.

    The nub of the case is NOT that the defendants had seen the claimants work. The nub of the case is that they set out to reproduce the key elements of it (read para 57).

    Although several images were shown that were supposed to illustrate that the claimants work was not in itself original all those images did was to show that the same subject (iconic London subjects) could have been interpreted in many different ways and that the defendant could have used any one of those images but, no, his intention was to reproduce the claimants image in its essential components. In any event it was not possible to prove (rather than assert) that any of those images predated the claimants image.

    So far (I think) I've dealt only with facts. There has been no opinion. Neither mine nor the judges.

    Then we do come to the opinion. Given the actual law the judge formed the opinion that the defendant had reproduced the essential elements of the claimants image and had therefore infringed copyright.

    Going further it's pretty clearly my opinion that the defendant wilfully and deliberately tried to reproduce the image in order to avoid paying the author (artist??) of the original a fee for using the image. However his motives were not being tried so I guess that's irrelevant too.

  16. AlanClifford

    AlanClifford Well-Known Member

    I guess something similar was said in Germany during the 1930's. Best not talk about stuff we don't like eh?
  17. P_Stoddart

    P_Stoddart Well-Known Member

    Trouble is the judge layout where the scope is for "originality in photography"

    In point 22

    "i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;"

    Oops because the shots are at different angle therefore it has meant i) and on different focal length lenses which fits in with effects as above. So the judge is contradicting himself. He explains the undestanding in law of how photographer don't fall over themselves taking shots. Then ignores it in granting the case to the claimant. :rolleyes:

    Final point if this is not a worrying case why has AP got a headline of "shock ruling" & "copyright threat" :D
  18. MickLL

    MickLL Well-Known Member

    That is a quite pathetic, stupid and unwarranted comment and I won't dignify it with a proper response.

    Now you have made me break my resolution.

  19. Mark

    Mark Well-Known Member

    In my initial, superficial, reading of your post, you appear to justify your case using two specific examples from the world of microblogging that exist and operate in an entirely different context to this forum. Paradoxically, you do so using approximately 150* words (and almost 1,000* characters)

    Are you proposing that we limit our reading and comprehension of your posts to the first 140 characters? I can't find many twitterers who apply the rules of the twittersphere to their other communication. That great exponent of the art, Stephen Fry, (amongst many others) comes to mind as someone who might disagree with this approach.

    There is an obvious time and place for microblogging. Likewise the language and structure related to SMS texting, with it's attendant contractions related to the 160 character limit. For other forms of communication, including this and other forums, I stand by my observation that "Some people appear to have a real problem with actually opening their minds to new ideas, conducting rudimentary research, and even basic skills like 'reading the question' seem to have been lost.".

    *approx counts by my own rudimentary webdev tools.
  20. MickLL

    MickLL Well-Known Member

    I think that you have missed the point.

    Paragraph 22 is simply a list of the areas, in general terms, where a photograph may be said to be similar to or different from another. The paragraph is not referring to either of the disputed images it's a general scene setter. The bit that you have written about is actually the first item (item i) of paragraph 22.

    Then did you read paragraph 23 where it's said that neither side made any detailed submissions about item i. That appears to mean that both sides considered item i to be unimportant.

    You have also ignored the area of the judgement to which I referred you in paragraphs 30 to 35. A picture does not have to look similar, overall, to another in order for an infringement to have taken place. It's enough that the essential elements have been copied.

    AP is a 'newspaper' and out to sell copy. All the inflammatory headlines in the world don't alter either the facts or the law. That's also the point that I was making that provoked the "quasi -nazi" response above. Just because some folk get excited and spout sound bites and quotable scaremongering doesn't alter the facts one iota.

    I think that we are getting nowhere here but I'll remind you for a final time of the nub of the case which is that the defendants deliberately and consciously, with full knowledge of the claimants image,set out to reproduce the key elements of that image. They set out to copy it in its essentials and they did it for commercial gain. Those last three words are mine and don't form part of the actual judgement,

    I would also refer you to para 68 where it's said that had the defendants gone to the same spot and taken their own original picture they could have used it. It's the fact that they went to great lengths to reproduce the essential elements of the original that was their downfall.

    As I said I feel that we are getting nowhere so unless someone comes up with a new angle maybe we should leave it.


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