What you can and cannot copyright
The boundary between the expression of an idea which copyright protects and the underlying idea which cannot be protected is a fluid one
By Simon Stokes. Comment, Issue 233, March 2012
Published online: 14 March 2012
Copyright cases are rare in the English courts, especially those involving artistic works. The most significant, recent artistic copyright case, involving the Designers Guild, which unusually reached the House of Lords (final appeals are now heard in the Supreme Court), is more than ten years old. That case involved infringing fabric designs inspired by the work of Matisse and highlights that to be worth fighting there must be some significant commercial interest at stake in the alleged copying. Only someone with very deep pockets would bring a case on a point of principle. So while there is plenty of discussion in artistic circles about whether appropriation art or other artistic styles and works infringe copyright, in the English courts at least such cases are rare if non-existent. However this may change: the government is keen to encourage the cost-effective resolution of so-called intellectual property (IP) disputes involving copyright as well as designs, trade marks, trade secrets and patents. And a recent decision of an until recently rather obscure “inferior” UK court, the Patents County Court, designed to make IP litigation more attractive, has set the copyright classes chattering.
The case, Temple Island Collections Ltd v New English Teas, was decided in January this year and it involved photographic copyright. The claimant, Temple Island, had created a digitally manipulated image (treated as a photograph by the court although it was also discussed as if it might be a collage) of a black and white photograph of a bright red London Routemaster bus travelling across Westminster Bridge in London. The image, at a well-known tourist spot, was used on souvenirs of London. The defendant, according to the judge, went to lengths to create something similar but by no means identical, using somewhat different photographs and a stock image of a London bus, digitally combined into one image. This latter image was used by the defendants to sell tea across the world. The claimant objected, went to court and, rather surprisingly, won.
I say rather surprisingly as, judged side-by-side, the two digitally manipulated photographic images are rather different. Yes, they each feature a digitally enhanced red London bus on the east side of Westminster Bridge, travelling south, with a black and white background and a digitally manipulated white, cloudless sky. But they clearly use different photographs taken from different positions.
Yet copyright law does not just protect against identical copies—in English law the test is whether the defendant has copied the whole or a substantial part of the claimant’s original work. And the phrase “substantial part” is a matter of quality not quantity. So in the Temple Island case the judge, following what the House of Lords said in the Designers Guild case, decided that the defendant’s image did reproduce a substantial part of the claimant’s work: the visually contrasting features together with some elements of the overall composition. And key here according to the judge was that the defendant had seen the claimant’s image and had set out to create something similar, including digital manipulation and colourising. If they had simply asked an independent photographer to go to Westminster to take a picture including a London bus, the tower of Big Ben and the Houses of Parliament, then there would have been no infringement.
This case has been welcomed by those in the UK such as the campaigning and lobbying group Anti Copying in Design, who seek to protect the work of artists, photographers and designers from copying. For the group, and others in favour of strong copyright laws, it highlights that copyright is about protecting original styles and creative skill and investment as much as it is about protecting an image from exact/literal copying. Yet others who use photographs and images as inspiration for their works will feel uneasy. The boundary between the expression of an idea which copyright protects and the underlying idea which cannot be protected is a fluid one. A visit to any London souvenir shop will reveal plenty of digitally manipulated images of a red London bus on Westminster Bridge with the tower of Big Ben in the background on products as diverse as tea caddies, postcards, coasters and so on. The idea that this scene and its treatment could be monopolised sounds absurd but that is what the Temple Island case arguably does. The case may go to appeal and, in any event, decisions of the Patents County Court are not binding precedent. Yet, given the paucity of UK copyright cases, the case is bound to have some influence. If such cases and outcomes become more common, then the need in the UK to revisit the so-called fair dealing exceptions to copyright in order to strengthen them to permit the transformative re-use of copyright works, for example for parody or to create new artistic works, will become more pressing. The door to reform here has already been opened in the UK by the Hargreaves Review of Intellectual Property and Growth where a fair dealing exception for parody, caricature and pastiche has been proposed. Artists ought to welcome and support this.
The writer is an art lawyer and a partner with Blake Lapthorn, London. The second edition of his book Art & Copyright is published this month
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