Interesting ruling on copyright breach

[Hilary Hann]

http://www.dpreview.com/news/2012/01/25/Imitated_Image_Copyright_Case

Not sure that it effects nature photographers particularly, unless you process the image for OOTB and use someone else's style or technique? Don't know how that would be evaluated. I wonder if more cases are brought to court.

[Morkel Erasmus]

I was just about to post the link here, you beat me to it, Hilary...

Very interesting. Compositionally this is an issue - I can understand that the "toning" or general sentiment of the image is very similar and borders on plagiarism, but what does this mean to everyone even taking a photo of an egret landing on a branch or a lion lying in long grass?? :2eyes2:

[Roger Clark]

Morkel,
My thoughts exactly. Let's say your in a safari vehicle with 2 other photographers. All three take a picture of a lion in the grass. Who owns the copyright? This judge would apparently say the one who pressed the shutter button first. And that doesn't mean of just the three in in the vehicle!

The two images in the case are clearly different. Selective color has been around a long time. It's nuts. But then in Paris we have the Eiffel tower whose lights are copyrighted so one can't publish night images of the tower unless the tower is a minor part of the image (and minor is a gray area).

Roger

[Ken Watkins]

Not the first case to come out of British courts in recent years with what can be best described as "strange" conclusions. You should see some of the libel cases:bg3:
This ruling is to my mind correct as it is based on a "commercial" use.

[adrian dancy]

It does not surprise me that such a bizzare judgment is made when, as it appears, little or no evidence was presented to the court other than the photographic/art images in question with which it could make a truely informed decision. It is interesting that no 'expert evidence' was submitted. However what can you expect from a lower court burdened with the modern procedural rules (The CPR ,being a product of the Woolf Report 1996 which was designed to speed up justice and make it cheap). The CPR in my view puts a ball and chain on parties preventing proper adversarial argument. In the Patents County Court parties are limited to a two day hearing which is probably insufficient bearing in mind the the consequential ramications of a judgement on society as a whole. In my view the Patent County Court was not appropriate for this type of case. However the parties having limited funds may have felt that had no other option.


More generally it seems to me that no effort had been made by the defendants to produce similar images/art work that were made prior to the claimant's images/artwork which would have pulled the rug from under the claimant's feet. I'm sure a search through stock agencies and other archives would have produced something. However it does still puzzle me that the judge still took the very subjective view that he did in regard to establishing that the final image was in some sense unique because it certainly was not in any respect individually in regard to the elements or compositionally. I agree with Roger that the two images stand apart...significantly so in my view.

I do not think there is anything to concern wildlife photographers here in this judgement. The judge has made a distinction between the mere taking of photographs and manipulated art work. There is no copyright on a sparrow (although there may be for the post it is perching on!). What bothers me is the way in which he seems to denegrade basic imaging which in itself is still an art in my view.


I expect another similar case will go before a higher court and hopefully the present judgement will be ignored, distinquished or overruled.


I have to agree the decision by the court was bizzare.


Just my view.

[DickLudwig]

Trying to take this beyond just this case is a waste of time.
The most important aspect of the case is the history of the two parties and the loser of the case not being willing to pay for use of the image in question. Instead of paying to use the original image the case lose went out and took a similar image, yes from a slightly different view point, but then went and did exactly the same post-processing. The judge said it was not different enough, you copied the basic concept of the original image i.e. the post-processing exactly the same and a camera position that was close enough to the original to make it a copy write infringement. Without the history there would have been no case. Trying to draw parallels to images in nature photography doesn't have any merit IMO.

[Jay Gould]

Having taken the time to look at the full decision, what is more bizarre than the decision is the fact that neither party produced any significant evidence in support of their particular position. At the end of the day the parties, for reasons only known to the parties, decided to rely upon this judge's background and experience.

Keep in mind that this is a trial court decision. It has no precedent value and cannot be cited in another case.

Will the defendant appeal? That result would have wide ranging implications.

[adrian dancy]

Jay

The Patent Court has to take account of its own decisions.

I agree there was a paucity of evidence produced. Also as I stated I hope that this case will be one that stands alone.

[rajivsarathy]

The key part of the court's analysis hinged on:


10. Reviewing the matter in court, a measure of clarity emerged, the upshot being that defendants deny infringement but they do not advance a case of independent design.

IN other words, If you try to copy my creativity - even in the US - you infringe. If you and I came up with similar works independently, you don't infringe.

This is not as surprising a result as some people say it is. The defendant was trying to copy the design of a hugely popular image. That's still infringement.

[adrian dancy]

I think the evidence suggested that the defendant went to lengths not to copy the design and in my view he didn't. He changed view point significantly and as Roger stated selective colour has been around for a long time. The same applications have been applied for pillar boxes,taxis and many iconic forms. I recall seeing a similar image on a bisciut tin or lunch box when in a London park back in 1976! I understand that some cameras may have programes for selective colour imaging...that being the case it will really throw the cat amongst the pigeons. Much of the judges reasoning was OK but it is the conclusion I find baffling. It is unfortunate that evidence was not put forward that the design was not original but having said that , in the absence oof such evidence, perhaps there was some room for 'judicial knowledge' to be applied.

I recall a case in the USA where a photograph was taken of Barack Obama. The image was used as a template for an artwork used on T shirts or something. The photographer claimed copyright and he lost. Upshot copyright law is in a mess.