Landmark ruling to be challenged
Why a British judge decided that an image of a bus on Westminster Bridge infringed copyright
By Anny Shaw. News, Issue 233, March 2012
Published online: 14 March 2012
Lawyers are appealing against a controversial copyright ruling in which a judge said it was unlawful to recreate parts of a composition of an existing photograph, even if the second work is not a copy but a separate photograph taken from a different angle. Art and copyright legal experts have criticised the judgment for moving into the realm of protecting ideas, rather than the expression of ideas. The application to appeal is due to be heard at the end of this month.
The ruling could have serious implications for artists who reproduce parts of other photographs. “If other courts follow this approach, it raises issues for artists who appropriate or closely copy photographs,” says Simon Stokes, a lawyer who specialises in art and copyright.
The case, heard in the Patents County Court in London in January, involved a photograph taken by Justin Fielder, the managing director of the souvenir company Temple Island Collection, of a red London bus crossing Westminster Bridge with the Houses of Parliament in the background. Fielder digitally manipulated the image so that the desaturated black and white background contrasts with the red bus. The infringing photograph, a compilation of several shots taken by Nicholas Houghton, depicts a similar scene and has been manipulated in a similar manner. Houghton owns New England Teas, which used the image on its packaging.
Lawyers for New England Teas argued that Temple Island could not “use copyright law... to give them a monopoly on a black and white image of the Houses of Parliament with a red bus”, and that the view depicted is well-known and often captured by amateur and professional photographers. They also argued that the technique of contrasting an iconic image, such as a London bus, with a black and white background is “not unique”. But in what he described as a difficult decision, the judge, Colin Birss QC, found that Houghton’s image substantially reproduced elements of Fielder’s composition, as well as its visual effects, and so infringed copyright laws. The judge’s decision also considered the fact that Houghton knew of Fielder’s photograph before creating his own.
Copyright lawyers say the elements in Fielder’s photograph that the judge referred to, such as the red bus with parliament behind, are ideas rather than expressions. Ideas are usually covered by other intellectual property legislation, such as patent and trademark laws. “The judge felt at liberty to talk about elements [of Fielder’s image], which moves into the realm of ideas,” Stokes says. “He has used the law to create a monopoly over ideas.”
The ruling shows the difficulties courts face in drawing a line between ideas and expression. “You can’t always draw a boundary between them, it depends on the case. In this case the judge took a rather conservative and literal approach,” Stokes says.
An intellectual property barrister, Simon Malynicz, says any appeal case is likely to focus on the difference between English and European copyright laws. “Traditionally, UK law has protected anything of visual significance without requiring a huge amount of originality. The European standard is much more about an author’s intellectual creation.” In this case, Birss referred to both approaches, he says.
The Court of Justice in Luxembourg has recently transformed the copyright landscape, Malynicz says. “A batch of copyright laws will come out of Europe over the next six months. This case points to the tension between UK and European laws.”
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