Near identical photograph - no copyright infringement

A recent story in The Guardian caught my eye.  It was used by Jonathan Jones as an example of lack of the 'amateur delusion of photographic art' but the post about what level of copyright protection should be given for photographs (and whether that should vary dependent on the type of photograph) will have to wait for another day.

Sarah Scurr's photograph of an iceberg off the coast of Chile

This story concerned a photograph of a glacier which was taken by a British language student back in 2006.  Sarah Scurr was on a boat trip around the Patagonian ice fields when she took a photograph of glacier.  She was living in Chile at the time but when she returned to the UK in 2009 she decided to enter it into The Telegraph's The Big Picture photography competition.  The Big Picture competition is explicitly aimed at finding good quality holiday snaps and the prize is currently a £500 Nikon camera.

Last month the photograph came to the attention of another photographer, Marisol Ortiz Elfedt.  She was very surprised to see that the photograph had been published in The Telegraph.  It was an image she was very familiar with and looked very similar to one she had taken in 2006.  She complained to The Telegraph who investigated.  It turned out that the two photographs were taken on the same day and, given the fact they were on a moving boat, likely at more or less exactly the same time.

Marisol Ortiz Elfedt's photograph of the same glacier

Think how many identical photographs there must be of famous landmarks stored on various computers around the world.  As Scurr, when interviewed by The Telegraph commented, it is surprising that issues like this do not arise more often.  Clearly copies like this do not infringe copyright but the position is more complicated when people try to recreate a famous photograph having the photographic image (rather than the scene or object) clearly in mind.

One UK case which springs to mind is Creation Records.  A photograph of an Oasis album cover was taken by a tabloid photographer before the official photograph had been taken (and from a different angle and distance).  There was no copy of an original work - the judge easily found that there was no copying of the photograph (see below) and arguments that the arrangements of props constituted a dramatic work, collage, sculpture or work of artistic craftsmanship all failed.

The relevant paragraph [15] from the judgment is below (emphasis added):

Next, Mr Merriman contended that Mr Seeburg's photograph was itself a copy of the official photograph taken by Mr Jones, regardless of the order in which the two were taken. I do not see how that can be argued. If the subject matter is not itself copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other. Of course copyright subsists in the official photograph and if it were the only source of the scene it would be an infringement to copy that, either by a direct copying process or by the scene being recreated and a fresh photograph taken of that recreation. But it is a basic proposition of copyright law that two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are.

Consequently the claim of copyright infringement failed.  However, had the tabloid photographer recreated the official photograph rather than photographing the scene, he would almost certainly have infringed.

There are two morals to this story.  First, be careful before crying copyright infringement - remember that it may be a coincidental image - is it identical or just very similar?  Secondly, as we know from the red bus case, recreating a photograph can still infringe.  This is theoretically the case even if it is of a famous building or landscape - although the less creative the composition the more the similarity of technique, lighting, effects etc will be important in determining whether a substantial part has been taken.

For those worried about the outcome of the Creation Records case, whilst the copyright infringement claim may have failed, the judge found in favour of Oasis and granted an interim injunction on the basis of breach of confidence.