The court considered two main questions (1) is Photo 1 a copyright protectable work and (2) if so, has a substantial part of Photo 1 been copied to make Photo 2.
|Has Photo 2 (on the right) copied a "substantial part" of photo 1 (on the left)?
Although a photograph is one form of artistic work which is protected under the Copyrights Designs and Patents Act (CDPA), not every photograph is an artistic work. Following the European cases of Infopaq and Painer, for copyright to subsist in a photograph it must be the “author’s own intellectual creation”. Painer went into considerable detail as to what did and did not constitute the “author’s own intellectual creation” but it effectively means that not every snapshot that you take on e.g. your smart phone has copyright protection.
By way of example, the judgment refers to an Austrian decision (O (Peter) v F KG) which related to photos of grape varieties. This found that “what is decisive is that … the [photographer’s] personality is reflected by the arrangements (motif, visual angle, illumination etc).” It is hard to avoid an aesthetic judgment being made under this approach (even though the CDPA explicitly says that '“artistic work” means ... [a] photograph ... irrespective of artistic quality' (s. 4(1)(a)).
The judgment noted that composition is affected by the angle of the shot, the field of view, and computer manipulations which are made in post processing. It ultimately held that Photo 1 is an artistic work as either a photograph or a collage (on the basis that the sky was digitally removed and replaced with white and therefore the image could be an electronic collage).
Does photo 2 infringe the copyright in photo 1?
Answering question 2 isn’t as straightforward as it may sound. It is not a case of what are the differences between photo 1 and photo 2. As the judge notes, it is possible to “reproduce a substantial part without necessarily producing something that looks similar”.
It is a matter of “quality not quantity” i.e. have the features which give photo 1 its artistic quality been copied by photo 2. The judge analysed this quality based on composition and visual contrast.
Although the “images undoubtedly differ in their composition”, the type of bus, direction of travel, presence of people, lack of traffic and amount of sky were identified as both copied and qualitatively important. In terms of visual contrast, the red bus against the monochrome background was clearly copied but the blank white sky was also identified as significant.
Together the composition and visual contrast features were found to be a “substantial part” of photo 1 and to have been copied by photo 2. Although the analysis is quite detailed it is very hard to see how a photo taken at a different angle, with a different foreground, exposure level and perspective could infringe. Arguably all that is really copied is that idea of a black and white photo of the Houses of Parliament with a red bus in the foreground.
The judge noted that “the whole point of this case is that [the defendant wants] lawfully to produce an image which does bear some resemblance to the claimant’s work". This is the heart of the problem. Based on the judgment, there appears to be an attempt by the tea company (defendants) to sell more tea through an association with a popular photograph of a London landscape (photo 1). However, whether that association is legitimate is not a question for copyright law which should only be concerned with considering whether a substantial part of the original photograph has been taken. It is my personal view that a substantial part has not been taken.
Whilst it is clear that not every photo of Westminster Bridge would infringe photo 1. The line as to what inspiration photographers (and other artists) can and cannot take from previous works has become (more) blurred.
(a portrait version of the defendant's photo 2)
Again, somewhat surprisingly, the court found that “The cropping has been carried out to discard only the most insignificant parts of the original” and therefore “the cropped portrait version does reproduce a substantial part of the claimant’s work”.
What do you think? This case has aroused a fair amount of controversy in legal circles. We would love to know where would you draw the line.