4 ms·

The same story from a different source was posted two days ago: http://news.ycombinator.com/item?id=3508615 http://news.ycombinator.com/item?id=3508615. As was

by chc 15y ago

The same story from a different source was posted two days ago: http://news.ycombinator.com/item?id=3508615 http://news.ycombinator.com/item?id=3508615. As was pointed out in the comments then, this ruling is nowhere near as broad or unreasonable as any of the knee-jerk articles make it sound. Essentially, the judge found it to be infringing because the evidence showed that the people who commissioned the photo were trying to make a counterfeit version of the original.

gerggerg 15y ago
And that's why the ruling is contentious. With out an attempt to deceive it's not a counterfeit. It's an inspired piece of creativity. The judge is effectively defining the boundaries of inspiration. http://dictionary.reference.com/browse/counterfeit http://dictionary.reference.com/browse/counterfeit
- chc 15y ago
  But that's the point: It does seem like there is an intent to deceive. From my understanding of the relevant facts, the copycat photo is meant to be displayed on merchandise right next to those that use the official one, and it seems unlikely a lot of people will be able to tell that it isn't just a cropping.
  - deleted 15y ago
    [deleted]
  - gerggerg 15y ago
    I think you're confusing the photo with the products. Perhaps the products are deceptive, but this case is about a unique photographic execution being a violation of copyright. Not a label infringing trademark.
    - vannevar 15y ago
      I think the judge was confusing them too. He let the 'up-to-no-damn-goodness' (as my old law professor would say) of the defendant prejudice his judgment on the copyright issue.
  - clarkevans 15y ago
    Paragraph 71 of the ruling explicitly states that the claim of unfair trade competition was not considered: "Whether or not consumers confuse the products of the parties (or their licensees) is not the issue."
Lagged2Death 15y ago
Essentially, the judge found it to be infringing because the evidence showed that the people who commissioned the photo were trying to make a counterfeit version of the original. I.e., the defendant's crime was embodied entirely in the defendant's state of mind rather than in the defendant's actions or in the work the defendant produced. The ruling[1] is actually quite explicit that the pictures in question are obviously dissimilar (10), and the ruling is also explicit that brand confusion was not the issue (71). I think the ruling is absolutely as broad and as unreasonable as the most hysterical headlines make out. For once. [1] http://www.bailii.org/ew/cases/EWPCC/2012/1.html http://www.bailii.org/ew/cases/EWPCC/2012/1.html
- clarkevans 15y ago
  While it might be broad, I'm not sure if it is unreasonable. In paragraph 37 the judge quotes case law and emphasizes: "defendants deny infringement but they do not advance a case of independent design". In paragraph 67 he explains this further: the defendant "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". I think that if this work was done as a "clean room" effort where the requirements were specified and the designer wasn't shown the template to replicate, the output would have likely differed in many other ways and the court case would have swung the other way or avoided completely.
  - Natsu 15y ago
    > "defendants deny infringement but they do not advance a case of independent design". Which is funny, because after the people pulled up a bunch of other photos that were pretty similar, the plaintiff said they'd never seen them before and the judge simply took them at their word. While he didn't consider item 71 for some reason, it's probably the main thing that undercut any way for them to claim theirs was original. Apparently, if nobody knew where they got the idea from, it would've been okay?
  - Lagged2Death 15y ago
    In paragraph 67... I think you mean 68. There the judge explains that if the defendants hadn't put in as much effort, the resulting photo would be OK. That's an assertion he's not really in any position to make, frankly. If the defendant had done as he suggests, and the picture turned out to be similar enough to the claimant's, why wouldn't the claimant still sue? Why wouldn't the judge find that alternate photo to be a deliberate imitation, and thus an infringement in that case, exactly as he did in this one? ...the output would have likely differed in many other ways... This judgment explicitly states that copyright infringement can occur even if the works in question don't look at all alike (30) and that the differences between the pictures aren't important but the similarities are (56). I half-suspect the judge is an amateur photographer and he's tying himself in all these logical knots because the defendants in this case are a bunch of jerks. But I also think (in my non-legal-expert way) that this is a really, really stupid decision with terrible implications, and I hope it's overturned or reversed in some way.

by chc 15y ago

gerggerg 15y ago

And that's why the ruling is contentious. With out an attempt to deceive it's not a counterfeit. It's an inspired piece of creativity. The judge is effectively defining the boundaries of inspiration. http://dictionary.reference.com/browse/counterfeit http://dictionary.reference.com/browse/counterfeit

chc 15y ago
But that's the point: It does seem like there is an intent to deceive. From my understanding of the relevant facts, the copycat photo is meant to be displayed on merchandise right next to those that use the official one, and it seems unlikely a lot of people will be able to tell that it isn't just a cropping.
- deleted 15y ago
  [deleted]
- gerggerg 15y ago
  I think you're confusing the photo with the products. Perhaps the products are deceptive, but this case is about a unique photographic execution being a violation of copyright. Not a label infringing trademark.
  - vannevar 15y ago
    I think the judge was confusing them too. He let the 'up-to-no-damn-goodness' (as my old law professor would say) of the defendant prejudice his judgment on the copyright issue.
- clarkevans 15y ago
  Paragraph 71 of the ruling explicitly states that the claim of unfair trade competition was not considered: "Whether or not consumers confuse the products of the parties (or their licensees) is not the issue."

Lagged2Death 15y ago

Essentially, the judge found it to be infringing because the evidence showed that the people who commissioned the photo were trying to make a counterfeit version of the original. I.e., the defendant's crime was embodied entirely in the defendant's state of mind rather than in the defendant's actions or in the work the defendant produced. The ruling[1] is actually quite explicit that the pictures in question are obviously dissimilar (10), and the ruling is also explicit that brand confusion was not the issue (71). I think the ruling is absolutely as broad and as unreasonable as the most hysterical headlines make out. For once. [1] http://www.bailii.org/ew/cases/EWPCC/2012/1.html http://www.bailii.org/ew/cases/EWPCC/2012/1.html

clarkevans 15y ago
While it might be broad, I'm not sure if it is unreasonable. In paragraph 37 the judge quotes case law and emphasizes: "defendants deny infringement but they do not advance a case of independent design". In paragraph 67 he explains this further: the defendant "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". I think that if this work was done as a "clean room" effort where the requirements were specified and the designer wasn't shown the template to replicate, the output would have likely differed in many other ways and the court case would have swung the other way or avoided completely.
- Natsu 15y ago
  > "defendants deny infringement but they do not advance a case of independent design". Which is funny, because after the people pulled up a bunch of other photos that were pretty similar, the plaintiff said they'd never seen them before and the judge simply took them at their word. While he didn't consider item 71 for some reason, it's probably the main thing that undercut any way for them to claim theirs was original. Apparently, if nobody knew where they got the idea from, it would've been okay?
- Lagged2Death 15y ago
  In paragraph 67... I think you mean 68. There the judge explains that if the defendants hadn't put in as much effort, the resulting photo would be OK. That's an assertion he's not really in any position to make, frankly. If the defendant had done as he suggests, and the picture turned out to be similar enough to the claimant's, why wouldn't the claimant still sue? Why wouldn't the judge find that alternate photo to be a deliberate imitation, and thus an infringement in that case, exactly as he did in this one? ...the output would have likely differed in many other ways... This judgment explicitly states that copyright infringement can occur even if the works in question don't look at all alike (30) and that the differences between the pictures aren't important but the similarities are (56). I half-suspect the judge is an amateur photographer and he's tying himself in all these logical knots because the defendants in this case are a bunch of jerks. But I also think (in my non-legal-expert way) that this is a really, really stupid decision with terrible implications, and I hope it's overturned or reversed in some way.