8 ms·

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 q

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.
  - Natsu 15y ago
    > If that's all it had been, the judgement makes it clear that the result would not have been infringing. The judge appears to follow a rather interesting line of reasoning about this. The defendants identified a whole bunch of very similar works. The plaintiff said he'd never seen them and the judge took him at his word. You can see this starting near item #49. So his work was considered original and theirs wasn't.
    - cico71 15y ago
      "Did you read the judgement yet? There's no point discussing anything without knowing the facts of the case." I know it's nice and quick to dismiss arguments by presuming someone didn't read something, but yes, I read the article and I think the two photos are different enough. Mo matter what the judge wrote. If anything, I'd say that the second photo (although aesthetically worse IMO) captures better the iconic landmarks by focusing just on the Parliament, the Big Ben and the Bus. Yes, is missing, the bridge, but look at how busy is the first photo with the lampost and the bus covering the parliament and the people on the bridge. It also captures a wider area, loosing focus on the main icons. The first is, overall, a better photo, but if I had to choose one to put on kitsch mugs, I find the second one more iconic (maybe cropping more on the right). "If that's all it had been, the judgement makes it clear that the result would not have been infringing." That was an extremization. Still, if I think I can do a better job at capturing a similar photo, I'm now barred from doing it and use the photo commercially unless I demonstrate that I did it either by canche, or that I didn't know about previous work (or more generally that my intent was not to take a photo not to pay the licence to someone else). There are plenty of photo spots around the world were everyone go to make similar photos and plenty of well-known techniques that can be applied in post-processing. Yet, there are very few really original (creative) photos taken in such places.
- forrestthewoods 15y ago
  You can't claim it's a very bad judgement because you didn't read it. I know you didn't read it because you said "overcast sky". Had you read the judgement it repeatedly discusses the blank/white sky. It's an important element of the final judgement. The sky may very well have been vibrant blue in the original, unedited photograph. It is not an overcast sky and had you read the judgement you'd know this. You're welcome to agree or disagree with the judgement, I really don't care. All I ask of people is that they actually read the damned thing before forming an opinion on it.
  - cico71 15y ago
    Ok, bad wording, what I meant is that this is a typical photo taken during an overcast day where you don't expose for the sky: low contrast (you can see it from the buildings and flat shadows in the original photo) and blown up sky. So may guess is that the original one was taken on an overcast day but the sky was not blown up enough to make the buildings pop up more so it was removed in post processing. Nothing much creative or new here. The photos are too small to make a good evaluation, but to me it seems that the second photo was not even taken on a overcast day (shadows on the building are more harsh). These are just speculations and it may as well be that also the first photo was taken on a sunny day and the photgrapher simply lowered the contrast in post processing (the judgement describes only the manipilations "In summary"). Anyway, this doesn't change a single thing in my opinion. I would go as far as to say that white sky is not only a common technique, but it's also iconic in this case (i.e. it was notthat much of a creative idea to express something unique). The judgement is full of notes taken about the several differences between the photos, among which composition itself is the most prominent, yet the sky becomes so important?? Really, I believe the whole thing is much simpler that all what is written in the judgement: a) the two parties involved already had problems in the past (see point 2) and b) the judge was biased by the fact that the second photo was done in a similar way on purpose (Point 10 "He clearly knew about the claimant's work when the second image was produced because the whole point of the exercise was to produce a non-infringing image given the complaint about the first image the defendants had used")
- pbhjpbhj 15y ago
  The key question is "was it copied from the other work". Of course these issues you raise can be important in proving the copying.
goblin89 15y ago
This paragraph illustrates the controversy well—judge makes it clear that photos would ‘accidentally’ infringe if judged as suggested by claimant, and it was not the reason behind the judgement: > 62. Each side put its case too high. The defendants are wrong to urge that only facsimile copying will do. I also disagree with the claimant's formulation. The angles are similar but not the same and in any case I am sure there are many things satisfying the claimant's definition which would not infringe. But the next paragraph—what seems to reason judge's decision—looks a bit subjective: > 63. … 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. That said, I think the decision is correct to make in the light of ‘Another matter’ (which was in fact ignored): > 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. IANAL though.
bane 15y ago
"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." But isn't that essentially the problem? How many portraits are done in the style of the Mona Lisa, or landscapes in the style of a well known impressionist, or photographs of Yosemite in the style of Ansel Adams? Hell, an arts education, purely by teaching form, style and composition based on prior works is essentially a study in how to violate copyright if this ruling stands. To me the more important question with artwork has not been copying the style of a work, that is basically how most art in the world is created. It's counterfit works that are the problem. The two images in this case cannot possibly be considered in this manner. This is an absurd ruling that essentially means that all works must be unique in form, composition and style, and must not be inspired or based on any prievious works of any sort. That's an absurdly high bar that essentially stops the creation of most art.
- pbhjpbhj 15y ago
  Still on this: "Copyright does not protect an idea, but the expression of an idea." Copyright actually protects from copying. Even if the expression is identical if no copying took place then there is no infringement. That said. Copyright also expires which is what you, bane, have failed to mention. Also, copying the style - in this particular case - would have been something along the lines of a yellow cab on the brooklyn bridge with the background in monochrome. Even it seems if they'd had a red bus on Tower Bridge or elsewhere. But here they've used the same style and very nearly the same content. So I don't think you're being quite fair. An analogue might be recreating Warhol's Campbell's Soup Cans with the cans marginally rotated, basing the piece on the original work (trademark issues aside). Now I'd like to say that I think that piece actually would be a valid new work - and have quite a lot of substance - but nonetheless it would be derivative of the original beyond mere inspiration IMO. Before I get any further I'd better read the ruling ...
  - deleted 15y ago
    [deleted]
  - Natsu 15y ago
hxa7241 15y ago
The problem is there seems to be an enormous deficiency in the whole legal conception. The judgement goes on and on about originality and similarity and labour and skill. Certainly, that demanded a careful and fine examination. But really, this is all nigh on irrelevant. The only thing that really counts is the commercial impact. This is because the sole substantive purpose of copyright is to create market conditions to support production. Yet the commercial question seems, on a quick reading, entirely absent. Of course, the lawyers can only work with the law as it is; the problem is deeper. The law seems like it is trying to do the wrong thing. Restricting copying when it has no effect on original production is utterly counterproductive. If someone copies, in a case like this, we can presume it was because the material copied was good. And if they use it to sell a product, we can presume -- since they are actually making sales -- they are providing some useful service. Again, that is good. And if the copying has no detrimental effect on the original's commercial use, then we cannot have even a contrived sense of harm being done. So then one ought to ask: what on earth is the law doing preventing good and stopping no harm?
- chc 15y ago
  I would have thought the commercial harm was obvious here. They wanted to use the image, but to get around having to pay the license fee, they essentially created a counterfeit version. I suppose you could make the standard piracy "They wouldn't have paid for it anyway" argument, but that really strains credulity here. They just wanted a discount by commissioning a ripoff.
ctdonath 15y ago
As a trademark infringement, sure. An image commonly associated with a popular product inspired someone to create an at-a-glance similar image designed to invoke the same commercial impression but used on another product. As a copyright infringement, no way. Two discernibly different photos of the same thing are just that - different. Key comment that strikes me: "attempted to copy that photograph as closely as possible without infringing." Read those last two words again: "without infringing". The defendants were, by defined legislation, acting lawfully. Much as it may irritate some that law may be obeyed with certain consequences, such acts are STILL LEGAL. Any judicial system which responds to letter-of-the-law obedience thereto by redefining such actions as illegal just to convict a defendant cannot sustain, as those under the law don't know what the he11 they're under and at some point will revolt.
angersock 15y ago
Having read the ruling, and at least acknowledged the judge's reasoning... Does it strike anyone else here as...I don't know, odd...that a court ruling of potentially huge influence came about due to a squabble over images on postcards and tea boxes? Postcards and tea boxes. What the hell kind of government and civilization have we settled on that allows such a petty dispute to potentially hose an entire industry? Any code with such obscure coupling would be refactored without a second thought if possible.
- chc 15y ago
  This isn't a coupling between those two components; it's a common dependency with a bug that was exposed by one of the components. Once the bug in the dependency is fixed, anybody relying on the incorrect behavior is hosed.
jberryman 15y ago
FWIW I was going to comment about how typeface designers have been doing this since forever, but came across this (in summary: fonts are considered "utilitarian" and not protected by copyright): http://en.wikipedia.org/wiki/Intellectual_property_protection_of_typefaces http://en.wikipedia.org/wiki/Intellectual_property_protectio...

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.
- Natsu 15y ago
  > If that's all it had been, the judgement makes it clear that the result would not have been infringing. The judge appears to follow a rather interesting line of reasoning about this. The defendants identified a whole bunch of very similar works. The plaintiff said he'd never seen them and the judge took him at his word. You can see this starting near item #49. So his work was considered original and theirs wasn't.
  - cico71 15y ago
    "Did you read the judgement yet? There's no point discussing anything without knowing the facts of the case." I know it's nice and quick to dismiss arguments by presuming someone didn't read something, but yes, I read the article and I think the two photos are different enough. Mo matter what the judge wrote. If anything, I'd say that the second photo (although aesthetically worse IMO) captures better the iconic landmarks by focusing just on the Parliament, the Big Ben and the Bus. Yes, is missing, the bridge, but look at how busy is the first photo with the lampost and the bus covering the parliament and the people on the bridge. It also captures a wider area, loosing focus on the main icons. The first is, overall, a better photo, but if I had to choose one to put on kitsch mugs, I find the second one more iconic (maybe cropping more on the right). "If that's all it had been, the judgement makes it clear that the result would not have been infringing." That was an extremization. Still, if I think I can do a better job at capturing a similar photo, I'm now barred from doing it and use the photo commercially unless I demonstrate that I did it either by canche, or that I didn't know about previous work (or more generally that my intent was not to take a photo not to pay the licence to someone else). There are plenty of photo spots around the world were everyone go to make similar photos and plenty of well-known techniques that can be applied in post-processing. Yet, there are very few really original (creative) photos taken in such places.
forrestthewoods 15y ago
You can't claim it's a very bad judgement because you didn't read it. I know you didn't read it because you said "overcast sky". Had you read the judgement it repeatedly discusses the blank/white sky. It's an important element of the final judgement. The sky may very well have been vibrant blue in the original, unedited photograph. It is not an overcast sky and had you read the judgement you'd know this. You're welcome to agree or disagree with the judgement, I really don't care. All I ask of people is that they actually read the damned thing before forming an opinion on it.
- cico71 15y ago
  Ok, bad wording, what I meant is that this is a typical photo taken during an overcast day where you don't expose for the sky: low contrast (you can see it from the buildings and flat shadows in the original photo) and blown up sky. So may guess is that the original one was taken on an overcast day but the sky was not blown up enough to make the buildings pop up more so it was removed in post processing. Nothing much creative or new here. The photos are too small to make a good evaluation, but to me it seems that the second photo was not even taken on a overcast day (shadows on the building are more harsh). These are just speculations and it may as well be that also the first photo was taken on a sunny day and the photgrapher simply lowered the contrast in post processing (the judgement describes only the manipilations "In summary"). Anyway, this doesn't change a single thing in my opinion. I would go as far as to say that white sky is not only a common technique, but it's also iconic in this case (i.e. it was notthat much of a creative idea to express something unique). The judgement is full of notes taken about the several differences between the photos, among which composition itself is the most prominent, yet the sky becomes so important?? Really, I believe the whole thing is much simpler that all what is written in the judgement: a) the two parties involved already had problems in the past (see point 2) and b) the judge was biased by the fact that the second photo was done in a similar way on purpose (Point 10 "He clearly knew about the claimant's work when the second image was produced because the whole point of the exercise was to produce a non-infringing image given the complaint about the first image the defendants had used")
pbhjpbhj 15y ago
The key question is "was it copied from the other work". Of course these issues you raise can be important in proving the copying.

goblin89 15y ago

This paragraph illustrates the controversy well—judge makes it clear that photos would ‘accidentally’ infringe if judged as suggested by claimant, and it was not the reason behind the judgement: > 62. Each side put its case too high. The defendants are wrong to urge that only facsimile copying will do. I also disagree with the claimant's formulation. The angles are similar but not the same and in any case I am sure there are many things satisfying the claimant's definition which would not infringe. But the next paragraph—what seems to reason judge's decision—looks a bit subjective: > 63. … 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. That said, I think the decision is correct to make in the light of ‘Another matter’ (which was in fact ignored): > 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. IANAL though.

bane 15y ago

"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." But isn't that essentially the problem? How many portraits are done in the style of the Mona Lisa, or landscapes in the style of a well known impressionist, or photographs of Yosemite in the style of Ansel Adams? Hell, an arts education, purely by teaching form, style and composition based on prior works is essentially a study in how to violate copyright if this ruling stands. To me the more important question with artwork has not been copying the style of a work, that is basically how most art in the world is created. It's counterfit works that are the problem. The two images in this case cannot possibly be considered in this manner. This is an absurd ruling that essentially means that all works must be unique in form, composition and style, and must not be inspired or based on any prievious works of any sort. That's an absurdly high bar that essentially stops the creation of most art.

pbhjpbhj 15y ago
Still on this: "Copyright does not protect an idea, but the expression of an idea." Copyright actually protects from copying. Even if the expression is identical if no copying took place then there is no infringement. That said. Copyright also expires which is what you, bane, have failed to mention. Also, copying the style - in this particular case - would have been something along the lines of a yellow cab on the brooklyn bridge with the background in monochrome. Even it seems if they'd had a red bus on Tower Bridge or elsewhere. But here they've used the same style and very nearly the same content. So I don't think you're being quite fair. An analogue might be recreating Warhol's Campbell's Soup Cans with the cans marginally rotated, basing the piece on the original work (trademark issues aside). Now I'd like to say that I think that piece actually would be a valid new work - and have quite a lot of substance - but nonetheless it would be derivative of the original beyond mere inspiration IMO. Before I get any further I'd better read the ruling ...
- deleted 15y ago
  [deleted]
- Natsu 15y ago

hxa7241 15y ago

The problem is there seems to be an enormous deficiency in the whole legal conception. The judgement goes on and on about originality and similarity and labour and skill. Certainly, that demanded a careful and fine examination. But really, this is all nigh on irrelevant. The only thing that really counts is the commercial impact. This is because the sole substantive purpose of copyright is to create market conditions to support production. Yet the commercial question seems, on a quick reading, entirely absent. Of course, the lawyers can only work with the law as it is; the problem is deeper. The law seems like it is trying to do the wrong thing. Restricting copying when it has no effect on original production is utterly counterproductive. If someone copies, in a case like this, we can presume it was because the material copied was good. And if they use it to sell a product, we can presume -- since they are actually making sales -- they are providing some useful service. Again, that is good. And if the copying has no detrimental effect on the original's commercial use, then we cannot have even a contrived sense of harm being done. So then one ought to ask: what on earth is the law doing preventing good and stopping no harm?

chc 15y ago
I would have thought the commercial harm was obvious here. They wanted to use the image, but to get around having to pay the license fee, they essentially created a counterfeit version. I suppose you could make the standard piracy "They wouldn't have paid for it anyway" argument, but that really strains credulity here. They just wanted a discount by commissioning a ripoff.

ctdonath 15y ago

As a trademark infringement, sure. An image commonly associated with a popular product inspired someone to create an at-a-glance similar image designed to invoke the same commercial impression but used on another product. As a copyright infringement, no way. Two discernibly different photos of the same thing are just that - different. Key comment that strikes me: "attempted to copy that photograph as closely as possible without infringing." Read those last two words again: "without infringing". The defendants were, by defined legislation, acting lawfully. Much as it may irritate some that law may be obeyed with certain consequences, such acts are STILL LEGAL. Any judicial system which responds to letter-of-the-law obedience thereto by redefining such actions as illegal just to convict a defendant cannot sustain, as those under the law don't know what the he11 they're under and at some point will revolt.

angersock 15y ago

Having read the ruling, and at least acknowledged the judge's reasoning... Does it strike anyone else here as...I don't know, odd...that a court ruling of potentially huge influence came about due to a squabble over images on postcards and tea boxes? Postcards and tea boxes. What the hell kind of government and civilization have we settled on that allows such a petty dispute to potentially hose an entire industry? Any code with such obscure coupling would be refactored without a second thought if possible.

chc 15y ago
This isn't a coupling between those two components; it's a common dependency with a bug that was exposed by one of the components. Once the bug in the dependency is fixed, anybody relying on the incorrect behavior is hosed.

jberryman 15y ago

FWIW I was going to comment about how typeface designers have been doing this since forever, but came across this (in summary: fonts are considered "utilitarian" and not protected by copyright): http://en.wikipedia.org/wiki/Intellectual_property_protection_of_typefaces http://en.wikipedia.org/wiki/Intellectual_property_protectio...