Imitating anothers photograph - Copyright infringement

Amateur Photographer magazine published an interesting story about a copyright infringement case of similar, but not directly copied, images. The issue of copyright is thorny, contentious and often misunderstood but this case sheds some light on the current attitude of courts in the UK. Despite significant differences between the two images (there was no implication that the second image was a duplicate of the first), the court found that the second image copied substantially from the 'intellectual creation' of the first (that is the elements that can be protected by copyright in the original image, including a consideration of the composition, lighting and processing of the image).

Amateur Photographer quotes photographic copyright expert Charles Swan as saying: 'The judgement should be studied by anyone imitating an existing photograph or commissioning a photograph based on a similar photograph.'

Click here to read the full judgement of the case

The judge concluded that the claimant (Justin Fielder)'s image is original and that the intellectual creation resided both in the compositional elements of the image and the contrast aspects. Specifically, Judge Birss QC highlighted two visual contrasts: 'one between the bright red bus and the monochrome background, and the other between the blank white sky and the rest of the photograph.'

He also took into account the evidence that Mr Houghton was aware of Mr Fielder's image (the two had previously been to court when they had failed to reach a licensing agreement over Houghton's previous infringement of Fielder's copyright), to conclude the similarities were causally related.

In the end, Birss said a difficult decision hinged on a 'qualitative assessment of the reproduced elements.' He defined Fielder's image a 'photographic work,' as distinct from a simply a photograph, in that 'its appearance is the product of deliberate choices and also deliberate manipulations by the author,' and concluded that those aspects had been copied.

Judge Birss also said that a series of images showing buses on Westminster Bridge and of red London icons on monochrome backgrounds submitted by Houghton 'worked against them because the collection has served to emphasize how different ostensibly independent expressions of the same idea actually look.' - story and info


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