Copying Clichés Can Infringe Copyright

It would be hard to exaggerate the shock I feel at the ruling by Judge Birss at the Patents County Court in London on 12 January. There is a good account of the case on the Amateur Photographer site, and this links both to the full court ruling and the two pictures concerned.

The case concerned two pictures of a Routemaster Bus on Westminster Bridge, both of which had a bright red bus on a picture which had otherwise been converted to black and white. Both had the Houses of Parliament in the background. It would be hard to think of a more clichéd image of London and indeed that was in both cases the intention.

Although there were some common elements, as the defence tried to point out these are shared by many other pictures of London. In a quick search on Flickr I turned up around 20 similar images, and it would be hard to argue any real degree of originality in any of them (although in the judgement there is a discussion of this, which would seem to imply that almost any photograph is legally original, which is perhaps just as well for most of us photographers.)

The treatment converting the background to black and white is also surely a cliché. And despite the similarities of subject and treatment, the two pictures seem significantly different, for example in lighting, in viewpoint, in the angle of the bus to the camera and the angle of view (although the claimants apparently stated it was “at the same angle as the claimant’s work” but it clearly isn’t.)

The judge does go into his deliberation at great length but I find some of his statements rather odd. He writes “At the crudest level the two images in question simply look strikingly similar” and I just have to disagree. Given that both have a red bus and a black and white Houses of Parliament they look strikingly different.

It is actually a very interesting discussion about the originality and copyright of photographs but unfortunately one that I think has resulted in a fairly ludicrous judgement in this case.

In one of the many points the judge writes that the photograph claimed to be infringed is not what

I will call a mere photograph; by which I mean an image which is nothing more than the result of happening to click his camera in the right place at the right time. I do not need to grapple with the scope of copyright protection arising from such a photograph.

I think the corollary of this may be that those of us who are proud to be mere photographers have  little to worry about the outcome of this particular case.

One Response to “Copying Clichés Can Infringe Copyright”

  1. ChrisL says:

    From my reading of the judgement, and I’m no lawyer, the case hinged on the usage of the images. Both being printed on “tourist” items and sold near or next to each other in retail premises they were, in that context, “strikingly similar”. Almost a “passing off” which is I understand a term to cover this type of practice. If considered as stand alone images this action would have failed as you say they are clearly different to a substantial degree,but in the context of the usage made of them they were similar enough to breach copyright.

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