The iconic red London bus has found itself at the centre of a dispute over copyright.
Earlier this month Judge Birss QC handed down his judgement in the Patents County Court case of Temple Island Collections Limited v New English Teas Limited and Nicholas Houghton.
It is an interesting case because it did not involve publishing a photograph taken by the claimant, but creating a similar photograph taken from the roughly the same viewpoint and using a black and white image of the Houses of Paliament with a red bus on Westminster Bridge in the foreground. Many would think that this was not a breach of copyright, but not the judge!
Judge Birss mentioned that there were 3 aspects for originality in photography, (1) specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techiniques (and presumably image editing?), (2) the creation of the scene to be photographed, and (3) being in the right place at the right time.
The relevant sections of the Copyright Designs and Patents Act 1988 (16 and 17) state that copyright is infringed by reproducing the whole or substantial part of a work in a material form. The judge found that the claimant's work was original in terms of its composition and visual contrasts. Perhaps the biggest factor in the decision was that the Defendant Mr Houghton had seen the Clamant's image before he re-created it, so he was without doubt influenced by it and followed the original very closely.
There were differences between the photographs, but they were considered immaterial by the judge. He accepted what the Claimant argued, "What the defendants cannot have is a southbound Routemaster on Westminster Bridge before the Houses of Parliament at the same angle as the claimant's work on a greyscale background and a white sky, in circumstances where they admitted seeing the claimant's work".
So in future those photographers out there who enjoy re-creating the works of other photographers need to tread very carefully if they are not to end up on the wrong end of a breach of copyright action.
Nigel Musgrove
Business and Litigation Solicitor
Tel: 0845 003 5639
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