Similar but different photo violates copyright

[Orogeny]

I found this on dpreview this morning. A court in the UK has ruled that a photo that is similar but clearly not a copy of another can still violate the copyright of the original photo.

Would love to hear what others on this forum think.

Photographers face copyright threat after shock ruling (update) news - Amateur Photographer - news, camera reviews, lens reviews, camera equipment guides, photography courses, competitions, photography forums

[groovyone]

I wish they showed the photos but that could be really bad. How many people could the Ansel Adams estate sue? I wonder if they were near identical staged photos, like someone copied someone else set and model or something.

[groovyone]

Duh, Keith, there is a link to the photos. Tough call, but I can kind of see their point on this one.

[Stargazer77517]

Really now!!!! If i take a photo of a bird in a tree and someone standing beside me does also, I can sue them????? Thats nuts. How many people have photographed the Grand Canyon for the same spot......?
I dont think that Judge is thinking clearly.

[tc95]

I bet this is appealed and reversed...if not...heck I need to take more photos and hire a the best attorney...I would not have to work anymore...Well actually I am no-body so I guess this will not work...moving on to next hair-brain idea...!!!

[groovyone]

Originally Posted by Stargazer77517

Really now!!!! If i take a photo of a bird in a tree and someone standing beside me does also, I can sue them????? Thats nuts. How many people have photographed the Grand Canyon for the same spot......?
I dont think that Judge is thinking clearly.

Look at the photos though, Fred. They did the same selective coloring from almost the identical spot, and both were for commercial use. Tough call.

[SCone]

Same difference as writing a book, recording a song, or filming a movie. Using a previous work, without permission, gets you into trouble.

[groovyone]

I think the article oversimplifies it and makes it sound like they both took photos of bridge from the same spot or something, but this looks MUCH more intentional.

[Stargazer77517]

Yep, saw them, but I just dont agree. To me in this instance,copyright infringment, is stealing someone photo,and claiming its yours or using it for benefit for yourself, not standing in the ALMOST same spot and doing the same processing.
I guess I dont understand, guess I need to read it, so I dont get sued
Think of how many people have photographed Half Dome, from the same vantage point, and processed it in B&W, Would Mr Adams be able to sue?

[Stargazer77517]

Originally Posted by SCone

Same difference as writing a book, recording a song, or filming a movie. Using a previous work, without permission, gets you into trouble.

I agree, but this is clearly taken from a different vantage point, It isnt a crop from the above photo.
Oh well just my .02
Be interesting as to the final outcome.

[rab3rd]

Those are two completely different pictures. Only the selective color is the same. I bet there are thousands of pictures much like these. Its a famous land mark with a famous type of bus. On any given day I bet a dozen or more people try to get that same shot.

This is bad presidence, very bad.

[groovyone]

If it was just someone taking the same shot I don't think it would have lasted in court, but since both were for commercial use I am sure it influenced the decision.

Yeah, if this stands it could be bad.

[wclavey]

I have thoughts on both sides of this issue and could probably, just for fun, argue either side...

I think that the comment by the judge reflects the difficulty of the decision and also points to the fact that it was probably not strictly the photograph that caused the infringement (...as others have pointed out, they are from distinctly different vantage points with different perspectives) but the entire finished product, including the post-processing & selective coloring. If the second company had used a straight B&W print or even a straight color print, then there probably would have been no claim... but because they used a similar print and then duplicated the post processing to create a ver similar final image, there is probably a basis to the claim and the decision.

That legitimacy that I think might be there, though, I think could cause problems if, in the future, the decision is separated from the actual incident and is used in a way that might bring two very similar straight photos where the artists did not set out to duplicate the distinctive commercial effects of the post-processing, perhaps even taken from the same designated scenic overlook (...often the only place you can actually get a good picture from, but, therefore, likely to be a "copy" of anyone else shooting from the same spot...), together in contention... I think it is the abstraction of the ruling to a set of more general cases that poses the problem.

[kenw]

Originally Posted by wclavey

..... I think it is the abstraction of the ruling to a set of more general cases that poses the problem.

bingo. existing laws are fairly clear and understood, this appears to be a narrow interpretation for a special case. Perhaps the process was more in violation than the actual finished art.

[Flores]

Brings up a good question. If you like an image, and can't come to terms on license agreement with the original artist, is it bad/wrong/against the law to attempt to recreate the image using your own devices?

Me thinks yes, if your intention to associate yourself with the original image creators use.

and low and behold, what do I find in the judges ruling:

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.

Which is all well and good.

The infringing image wasn't actually a photograph, but produced out of multiple elements of other images, with the goal of creating an independent work based on the original image. This seems to be the ruler the judge is using to measure the creation/copyright from, the actual act of creating the work by camera vs using photoshop. (because of other things mentioned, I'm guessing that the physical act of creating the photograph via camera is 'protected', while the manipulation of images is not)

Two factors which have influenced my decision are (i) the nature of Mr Fielder's image, and (ii) the collection of other similar works relied on by the defendants.

On the first point, 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.

On the second point, the collection of other similar works relied on by the defendants have worked against them because the collection has served to emphasise how different ostensibly independent expressions of the same idea actually look.

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 the defendants do not want to use those, no doubt for their own good reasons. Perhaps they did not look as attractive as the claimant's image? The defendants 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 claimant's 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.

Mr Davis submitted that a finding of infringement in this case would give the claimant a monopoly which was unwarranted. He uses the word "monopoly" in a pejorative sense but it does not help. All intellectual property rights are a form of monopoly, properly circumscribed and controlled by the law. In any case I do not accept that a finding for the claimant in this case is unwarranted.