As if we needed more proof that intellectual property and specifically copyright laws in the UK need a complete rethink, the UK Patents County Court has deemed it a breach of copyright to recreate photographs, not just making a copy of the original.
In Temple Island Collections Ltd v New English Teas Ltd and Another (No. 2), Judge Birss QC found that a “facsimile reproduction” isn’t the only way of copying a photograph – no, just recreating a *similar* scene is sufficient. The photographs in the case that were deemed so similar as to be breaching copyright were of a red Routemaster bus going across Westminster Bridge in London, with a little post-processing done to take the colour out of the scene making the user focus on the red bus. It is, then, a very common photo taken by tourists in London with some very basic effects added that can be done on most reasonable point-and-shoot cameras. See the two photos side by side above (or in the official court documents: original|recreation).
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Now I have done a small amount of editing to the photos to make them fit the page, but the photos are from different perspectives with the photographer standing in notably different locations. The defendant in the case may have tried to license the original photo, but after deciding it was too expensive they created a digital photograph from four different and licensed photos specifically in order to create a non-infringing image.
The Judge in the case seems to believe that “reproducing the work in any material form” covers not just straight copying (or “facsimile reproduction”), but also any image that used another as inspiration. Now this obviously causes major issues for photographers, as once a place has been photographed once and made famous, any new photograph taken in that location could be considered a copyright infringement. Under this belief you could, theoretically, get a case where one wedding photographer sues another for taking a photo of a bride wearing white at a particular church with the background a little blurred – they are, of course, both photographs showing off a bride and the events at that church. It is completely unworkable in practice.
This is yet another example of misunderstanding of intellectual property and how art can and should be protected. There was even a similar case involving The Sun and the band Oasis back in 1997, but no-one raised that case at all even if the facts are somewhat similar (at least to me). It appears that in the time between 1997 and 2012, the copyright lobby’s money has been well spent on convincing people that copyright extends far further than actually started in the law.
[via NIPC Law]