5 ms·

Photographers face copyright threat after shock ruling

92 points by Fice 15y ago

wlesieutre 15y ago
When I was in middle school, I had a short black and white photography class. For one assignment, we developed black and white images and then colored parts of them using kool-aid. I shot a stop sign and colored it red. The idea that http://davidsutherland.photoshelter.com/image/I0000jSgkaCbPa7s http://davidsutherland.photoshelter.com/image/I0000jSgkaCbPa... would somehow infringe on my copyright because it's the same subject matter and coloring is absurd. It's not my picture.
- Luc 15y ago
  What if (as it appears to be in this case) the second photographer intentionally used your photograph as a template for his own, copying it to the extent that a casual observer would not notice that they are different, putting in the effort to make it as much as possible like yours? There's many more similarities in those pictures - e.g. it's the same location, the same iconic background buildings, the same shade of red and the detail of the sky has been removed in both. I don't think the judge would have ruled this way if it had been a coincidence that the photos are alike.
  - FlemishBeeCycle 15y ago
    And what if you both sit in a life drawing class drawing the same model? What if for some odd reason you decide to sit behind one of the participants and draw a portrait based off their drawing? I certainly understand what you're getting at, but everything that we do today is based off of some idea that came before us. Is a certain level of indirection required for an expression to be considered appropriately unique? From the article, "..there is a line between copying ideas and copying the original expression of ideas...", I would consider that opinion to be both myopic and absurd. We stand on the shoulders of giants - nothing created today can ever be considered to be truly "original".
    - Luc 15y ago
      > From the article, "..there is a line between copying ideas and copying the original expression of ideas...", I would consider that opinion to be both myopic and absurd. Society needs to draw that line somewhere, to balance the free dissemination of culture and the possibility to make a living off creative works. As long as you are living in a democracy that needs to balance different opinions and make compromises, you'll never be able to get rid of this (unless you simply ignore the law, of course).
    - deleted 15y ago
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  - wlesieutre 15y ago
    I understand it's popular at Yosemite to try to replicate Ansel Adams' famous photos. Can his estate claim ownership of all of those photos? It seems like a dangerous precedent to me.
- Nick_C 15y ago
  > kool-aid Do you know of a link? Googling is not working for me, mainly because of all the images of coloured kool-aid drink and all the DIY sites on dying yarn with kool-aid(!).
grumblepeet 15y ago
Greed, greed...everything is greed. Sad day for photography in the UK.
- deleted 15y ago
  [deleted]
masonhensley 15y ago
Whoa, that's not cool. That goes against a number of things that I taught my team when I was the photo editor for the school paper in undergrad. While we had editorial restrictions regarding post-processing wise, I tried to impart to my team that being there with a camera in your hands was 90% of the work. I was taught that a fundamental aspect of photography is... if you were there and shot it, it's yours & you should be able to create derivative works accordingly.(Ya, this doesn't apply to taking a camcorder to a movie theater.) Does this mean that in 20 years after every square inch of London is photographed that no new commercial photographs because they might infringe? While the case had to do with more with the post processing of the general content, who knows how this will be interpreted in the future. I'm sorry for photographers in the UK, this could really end up sucking in the future.
- praxeologist 15y ago
  "I was taught that a fundamental aspect of photography is... if you were there and shot it, it's yours & you should be able to create derivative works accordingly.(Ya, this doesn't apply to taking a camcorder to a movie theater.)" Maybe the problem is anyone thinking they own any sort of rights at all in images, patterns, etc.
  - Natsu 15y ago
    At least in the USA, there are scènes à faire, which are considered to be so common they themselves are not protected: https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire And it wouldn't be hard to say that images of London buses, Parliament or Big Ben were so iconic as to be stock. But of course, UK copyright law is involved here, and they probably don't recognize any such exceptions. EDIT: I saw the judgement someone linked to and looked at the photos. Suppose that buses, Parliament & Big Ben are all considered stock. The view is different in both photos, it's quite hard to tell that the bus is on a bridge in the second photo, and the only creative element I can find that was copied was to put a red bus on a black & white photo of the same general location. It seems to me that item #71, along with mention that the second photo was introduced late in the game, could have tipped that towards the plaintiff.
mbreese 15y ago
What kind of precedent does this set in the UK and is there potential for appeal? As you can tell, I'm not familiar at all with the British legal system. What is the UK law on trademarks? I could see this being a potential trademark issue in the US, but not a copyright one.
- ThaddeusQuay2 15y ago
  "I'm not familiar at all with the British legal system." In London, you can get arrested, as a pedophile, simply for taking photos of children, on the street, who aren't your own. That's pretty much all you need to know about the British legal system. Oh yeah, and the best attorneys are the ones with the most expensive wigs. EDIT: Speaking of copyright: "On 13 January 2012, a [UK] judge ruled that O'Dwyer [the kid behind TVShack.net] can be extradited to [the] US. The Southern District Court in New York has charged O'Dwyer with conspiracy to commit copyright infringement and criminal infringement of copyright. Each charge carries a maximum sentence of five years." zttp://en.wikipedia.org/wiki/Richard_O'Dwyer NOTE: I forced the URL with a "z" because HN isn't allowing the apostrophe.
lucaspiller 15y ago
I wonder if this can be used to sort out the Zynga vs. NimbleBit issue?
richardburton 15y ago
I hate how we have to refer to stupid judges with honour: 'His honour Judge Birss QC decided that a photograph of a red London bus against a black and white background of Big Ben and the Houses of Parliament, with a blank sky, was similar enough to another photograph of the same subject matter to infringe copyright.'
rickmode 15y ago
A clear sign Intellectual Property has jumped the shark.
davekinkead 15y ago
I wonder if celebs could apply this ruling to pappazzi? Simply employ 1 pap to photograph the celeb partaking in a typical celeb action (coming out of a rehab centre, cavorting with intern) in typical pap style. Then sue for copyright infringement anytime a similar pic is published in the future. That said, this ruling makes about as much sense as trade marking a colour http://newsfeed.time.com/2011/11/21/cadburys-chocolate-trademarks-the-color-purple/ http://newsfeed.time.com/2011/11/21/cadburys-chocolate-trade... or illegal numbers http://en.wikipedia.org/wiki/Illegal_number http://en.wikipedia.org/wiki/Illegal_number
- alexchamberlain 15y ago
  I disagree about trademarking a colour; you've been able to do this in the UK for a long time. However, you should bear in mind that the trademark only holds in one industry, for which it is well known. For instance, Cadbury's holds purple for confectionery - they use purple on all of their packaging. Orange holds orange for the mobile phone industry, but easyJet holds it for airlines.
- roel_v 15y ago
  If you would read the judgement, you would see that this is in no way similar.
ernestinis 15y ago
Google image search gives: red bus big ben london... lots of similar images: http://www.001galerie.com/london-landscape-painting-routemaster-knife-p-1228.html http://www.001galerie.com/london-landscape-painting-routemas...
- cico71 15y ago
  Following the judgement, this painting is also infringing on the idea, composition and so on: http://i.dailymail.co.uk/i/pix/2011/03/03/article-0-0D74781D000005DC-489_634x444.jpg http://i.dailymail.co.uk/i/pix/2011/03/03/article-0-0D74781D... Or maybe not, because there's also a car in this one, so maybe it doesn't hit the similarness threshold...
yason 15y ago
This is good. When more people whose profession depends on the selective lack of "copyright", things on that front might get sorted out sooner than if it was only a group of angry "pirates" calling for something as kinky as internet civil liberties.
jrockway 15y ago
I guess all street photography is illegal now, since the Street View car already took a picture of your subject.
deleted 15y ago
[deleted]
amenonsen 15y ago
I read the judgement (http://www.bailii.org/ew/cases/EWPCC/2012/1.html http://www.bailii.org/ew/cases/EWPCC/2012/1.html, linked to from the page originally posted), and I think it is a clearly-written, well-thought-out ruling in a subtle case. The finding hinges on the fact that the infringing photograph was not an independent work, but was created based on knowledge of the claimant's original photograph, without drawing inspiration from (or knowing about) other similar works, a series of which are analysed. In no way does it mean that any photograph of a red bus in London would infringe on the claimant's copyright; in fact, this is specifically denied, and various ways in which the defendant could have created a non-infringing photograph are discussed. I find it's often instructive to read actual judgements rather than what is reported about them in the press.
deleted 15y ago
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forrestthewoods 15y ago
Did anyone here actually read the judgement? (http://www.bailii.org/ew/cases/EWPCC/2012/1.html http://www.bailii.org/ew/cases/EWPCC/2012/1.html) It's actually quite fascinating and I strongly urge everyone to read it before commenting. It directly addresses several issues raised. The claimant has a photograph widely used since 2006 and the defendant clearly attempted to copy that photograph as closely as possible without infringing. They second photo was not produced independent of the first. Copyright does not protect an idea, but the expression of an idea. The original photo is an original work and the second was clearly produced with the intent to evoke the same expression. Boundaries of intellectual property are incredibly difficult to define. I strongly urge everyone to read the judgement before making a judgement of your own. Predictions of doom and gloom are a great deal premature.
- cico71 15y ago
  Well, we may discuss about the "closely as possible without infringing". To me composition seems a lot different (with the second one being much worse, but I must say I'm also not impressed by the original one). Red bus in black&white with overcast sky? Give me a break... what are the chances to shoot with an overcast sky in London? Besides, isolating a (mostly) single color object in a B&W photo is so popular (and abused) that you can even have it in new point&shoot cameras. Go, figure: http://www.dpreview.com/reviews/sonynex5n/page10.asp http://www.dpreview.com/reviews/sonynex5n/page10.asp search for "Partial Color (R)" and click on the link. Seems quite obvious that if you find yourself in that photo spot, and a red bus passes by, you immediately think to make it pop out with such a post processing trick. I also don't buy the "clearly produced with the intent to evoke the same expression" argument. For example: how many pictures of the Matterhorn (with or without the lake in the composition) are taken and evoking the same expression? This is simply a very bad judgement. (Just to be clear: I see your point and my tone is not directed at you)
  - amenonsen 15y ago
    «Well, we may discuss about the "closely as possible without infringing".» Did you read the judgement yet? There's no point discussing anything without knowing the facts of the case. «Seems quite obvious that if find yourself in that photo spot, and a red bus passes by, you immediately think to make it pop out with such a post processing trick.» If that's all it had been, the judgement makes it clear that the result would not have been infringing.
AdrianRossouw 15y ago
it makes me sick that 'monochromatic city scene with one element of color' is being called 'original' in any sense.
- clarkevans 15y ago
  The judgment seems rather well considered. What it brings into my mind is that there wasn't a clean-room effort: "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."
deleted 15y ago
[deleted]

92 points by Fice 15y ago

When I was in middle school, I had a short black and white photography class. For one assignment, we developed black and white images and then colored parts of them using kool-aid. I shot a stop sign and colored it red. The idea that http://davidsutherland.photoshelter.com/image/I0000jSgkaCbPa7s http://davidsutherland.photoshelter.com/image/I0000jSgkaCbPa... would somehow infringe on my copyright because it's the same subject matter and coloring is absurd. It's not my picture.

Luc 15y ago
What if (as it appears to be in this case) the second photographer intentionally used your photograph as a template for his own, copying it to the extent that a casual observer would not notice that they are different, putting in the effort to make it as much as possible like yours? There's many more similarities in those pictures - e.g. it's the same location, the same iconic background buildings, the same shade of red and the detail of the sky has been removed in both. I don't think the judge would have ruled this way if it had been a coincidence that the photos are alike.
- FlemishBeeCycle 15y ago
  And what if you both sit in a life drawing class drawing the same model? What if for some odd reason you decide to sit behind one of the participants and draw a portrait based off their drawing? I certainly understand what you're getting at, but everything that we do today is based off of some idea that came before us. Is a certain level of indirection required for an expression to be considered appropriately unique? From the article, "..there is a line between copying ideas and copying the original expression of ideas...", I would consider that opinion to be both myopic and absurd. We stand on the shoulders of giants - nothing created today can ever be considered to be truly "original".
  - Luc 15y ago
    > From the article, "..there is a line between copying ideas and copying the original expression of ideas...", I would consider that opinion to be both myopic and absurd. Society needs to draw that line somewhere, to balance the free dissemination of culture and the possibility to make a living off creative works. As long as you are living in a democracy that needs to balance different opinions and make compromises, you'll never be able to get rid of this (unless you simply ignore the law, of course).
  - deleted 15y ago
    [deleted]
- wlesieutre 15y ago
  I understand it's popular at Yosemite to try to replicate Ansel Adams' famous photos. Can his estate claim ownership of all of those photos? It seems like a dangerous precedent to me.
Nick_C 15y ago
> kool-aid Do you know of a link? Googling is not working for me, mainly because of all the images of coloured kool-aid drink and all the DIY sites on dying yarn with kool-aid(!).

grumblepeet 15y ago

Greed, greed...everything is greed. Sad day for photography in the UK.

deleted 15y ago
[deleted]

masonhensley 15y ago

Whoa, that's not cool. That goes against a number of things that I taught my team when I was the photo editor for the school paper in undergrad. While we had editorial restrictions regarding post-processing wise, I tried to impart to my team that being there with a camera in your hands was 90% of the work. I was taught that a fundamental aspect of photography is... if you were there and shot it, it's yours & you should be able to create derivative works accordingly.(Ya, this doesn't apply to taking a camcorder to a movie theater.) Does this mean that in 20 years after every square inch of London is photographed that no new commercial photographs because they might infringe? While the case had to do with more with the post processing of the general content, who knows how this will be interpreted in the future. I'm sorry for photographers in the UK, this could really end up sucking in the future.

praxeologist 15y ago
"I was taught that a fundamental aspect of photography is... if you were there and shot it, it's yours & you should be able to create derivative works accordingly.(Ya, this doesn't apply to taking a camcorder to a movie theater.)" Maybe the problem is anyone thinking they own any sort of rights at all in images, patterns, etc.
- Natsu 15y ago
  At least in the USA, there are scènes à faire, which are considered to be so common they themselves are not protected: https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire And it wouldn't be hard to say that images of London buses, Parliament or Big Ben were so iconic as to be stock. But of course, UK copyright law is involved here, and they probably don't recognize any such exceptions. EDIT: I saw the judgement someone linked to and looked at the photos. Suppose that buses, Parliament & Big Ben are all considered stock. The view is different in both photos, it's quite hard to tell that the bus is on a bridge in the second photo, and the only creative element I can find that was copied was to put a red bus on a black & white photo of the same general location. It seems to me that item #71, along with mention that the second photo was introduced late in the game, could have tipped that towards the plaintiff.

mbreese 15y ago

What kind of precedent does this set in the UK and is there potential for appeal? As you can tell, I'm not familiar at all with the British legal system. What is the UK law on trademarks? I could see this being a potential trademark issue in the US, but not a copyright one.

ThaddeusQuay2 15y ago
"I'm not familiar at all with the British legal system." In London, you can get arrested, as a pedophile, simply for taking photos of children, on the street, who aren't your own. That's pretty much all you need to know about the British legal system. Oh yeah, and the best attorneys are the ones with the most expensive wigs. EDIT: Speaking of copyright: "On 13 January 2012, a [UK] judge ruled that O'Dwyer [the kid behind TVShack.net] can be extradited to [the] US. The Southern District Court in New York has charged O'Dwyer with conspiracy to commit copyright infringement and criminal infringement of copyright. Each charge carries a maximum sentence of five years." zttp://en.wikipedia.org/wiki/Richard_O'Dwyer NOTE: I forced the URL with a "z" because HN isn't allowing the apostrophe.

lucaspiller 15y ago

I wonder if this can be used to sort out the Zynga vs. NimbleBit issue?

richardburton 15y ago

I hate how we have to refer to stupid judges with honour: 'His honour Judge Birss QC decided that a photograph of a red London bus against a black and white background of Big Ben and the Houses of Parliament, with a blank sky, was similar enough to another photograph of the same subject matter to infringe copyright.'

rickmode 15y ago

A clear sign Intellectual Property has jumped the shark.

davekinkead 15y ago

I wonder if celebs could apply this ruling to pappazzi? Simply employ 1 pap to photograph the celeb partaking in a typical celeb action (coming out of a rehab centre, cavorting with intern) in typical pap style. Then sue for copyright infringement anytime a similar pic is published in the future. That said, this ruling makes about as much sense as trade marking a colour http://newsfeed.time.com/2011/11/21/cadburys-chocolate-trademarks-the-color-purple/ http://newsfeed.time.com/2011/11/21/cadburys-chocolate-trade... or illegal numbers http://en.wikipedia.org/wiki/Illegal_number http://en.wikipedia.org/wiki/Illegal_number

alexchamberlain 15y ago
I disagree about trademarking a colour; you've been able to do this in the UK for a long time. However, you should bear in mind that the trademark only holds in one industry, for which it is well known. For instance, Cadbury's holds purple for confectionery - they use purple on all of their packaging. Orange holds orange for the mobile phone industry, but easyJet holds it for airlines.
roel_v 15y ago
If you would read the judgement, you would see that this is in no way similar.

ernestinis 15y ago

Google image search gives: red bus big ben london... lots of similar images: http://www.001galerie.com/london-landscape-painting-routemaster-knife-p-1228.html http://www.001galerie.com/london-landscape-painting-routemas...

cico71 15y ago
Following the judgement, this painting is also infringing on the idea, composition and so on: http://i.dailymail.co.uk/i/pix/2011/03/03/article-0-0D74781D000005DC-489_634x444.jpg http://i.dailymail.co.uk/i/pix/2011/03/03/article-0-0D74781D... Or maybe not, because there's also a car in this one, so maybe it doesn't hit the similarness threshold...

yason 15y ago

This is good. When more people whose profession depends on the selective lack of "copyright", things on that front might get sorted out sooner than if it was only a group of angry "pirates" calling for something as kinky as internet civil liberties.

jrockway 15y ago

I guess all street photography is illegal now, since the Street View car already took a picture of your subject.

deleted 15y ago

[deleted]

amenonsen 15y ago

I read the judgement (http://www.bailii.org/ew/cases/EWPCC/2012/1.html http://www.bailii.org/ew/cases/EWPCC/2012/1.html, linked to from the page originally posted), and I think it is a clearly-written, well-thought-out ruling in a subtle case. The finding hinges on the fact that the infringing photograph was not an independent work, but was created based on knowledge of the claimant's original photograph, without drawing inspiration from (or knowing about) other similar works, a series of which are analysed. In no way does it mean that any photograph of a red bus in London would infringe on the claimant's copyright; in fact, this is specifically denied, and various ways in which the defendant could have created a non-infringing photograph are discussed. I find it's often instructive to read actual judgements rather than what is reported about them in the press.

deleted 15y ago

[deleted]

forrestthewoods 15y ago

Did anyone here actually read the judgement? (http://www.bailii.org/ew/cases/EWPCC/2012/1.html http://www.bailii.org/ew/cases/EWPCC/2012/1.html) It's actually quite fascinating and I strongly urge everyone to read it before commenting. It directly addresses several issues raised. The claimant has a photograph widely used since 2006 and the defendant clearly attempted to copy that photograph as closely as possible without infringing. They second photo was not produced independent of the first. Copyright does not protect an idea, but the expression of an idea. The original photo is an original work and the second was clearly produced with the intent to evoke the same expression. Boundaries of intellectual property are incredibly difficult to define. I strongly urge everyone to read the judgement before making a judgement of your own. Predictions of doom and gloom are a great deal premature.

cico71 15y ago
Well, we may discuss about the "closely as possible without infringing". To me composition seems a lot different (with the second one being much worse, but I must say I'm also not impressed by the original one). Red bus in black&white with overcast sky? Give me a break... what are the chances to shoot with an overcast sky in London? Besides, isolating a (mostly) single color object in a B&W photo is so popular (and abused) that you can even have it in new point&shoot cameras. Go, figure: http://www.dpreview.com/reviews/sonynex5n/page10.asp http://www.dpreview.com/reviews/sonynex5n/page10.asp search for "Partial Color (R)" and click on the link. Seems quite obvious that if you find yourself in that photo spot, and a red bus passes by, you immediately think to make it pop out with such a post processing trick. I also don't buy the "clearly produced with the intent to evoke the same expression" argument. For example: how many pictures of the Matterhorn (with or without the lake in the composition) are taken and evoking the same expression? This is simply a very bad judgement. (Just to be clear: I see your point and my tone is not directed at you)
- amenonsen 15y ago
  «Well, we may discuss about the "closely as possible without infringing".» Did you read the judgement yet? There's no point discussing anything without knowing the facts of the case. «Seems quite obvious that if find yourself in that photo spot, and a red bus passes by, you immediately think to make it pop out with such a post processing trick.» If that's all it had been, the judgement makes it clear that the result would not have been infringing.

AdrianRossouw 15y ago

it makes me sick that 'monochromatic city scene with one element of color' is being called 'original' in any sense.

clarkevans 15y ago
The judgment seems rather well considered. What it brings into my mind is that there wasn't a clean-room effort: "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."

deleted 15y ago

[deleted]