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Non-Copied Photo Is Ruled Copyright Infringement

samzenpus posted more than 2 years ago | from the close-enough dept.

United Kingdom 657

An anonymous reader writes "A UK judge ruled that a photograph inspired by another photograph, but clearly different from it, infringes the original photo's copyright. The two photographs were shot in the same location, have the same subject, and use the same distinctive post-processing treatment. However, the angle and composition are different. From the article: '[The judge] said a difficult decision hinged on a "qualitative assessment of the reproduced elements." He defined Fielder's image a "photographic work," as distinct from a simply a photograph, in that "its appearance is the product of deliberate choices and also deliberate manipulations by the author," and concluded that those aspects had been copied.'"

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Misleading to call it "non-copied" (5, Insightful)

Overly Critical Guy (663429) | more than 2 years ago | (#38825631)

You know, having read the judge's reasoning, the headline and summary for this story are somewhat misleading. Yes, the photograph is "clearly different" in that it's not the exact same photograph, but it is clearly the same compositional idea, with the only practical difference between a difference in angle. Also, the second photo was intentionally made to avoid licensing fees from using the original.

The judge offered his logic behind the decision:

The judge concluded that the claimant (Justin Fielder)'s image is original and that the intellectual creation resided both in the compositional elements of the image and the contrast aspects. Specifically, Judge Birss QC highlighted two visual contrasts: 'one between the bright red bus and the monochrome background, and the other between the blank white sky and the rest of the photograph.'

He also took into account the evidence that Mr Houghton was aware of Mr Fielder's image (the two had previously been to court when they had failed to reach a licensing agreement over Houghton's previous infringement of Fielder's copyright), to conclude the similarities were causally related.

In the end, Birss said a difficult decision hinged on a 'qualitative assessment of the reproduced elements.' He defined Fielder's image a 'photographic work,' as distinct from a simply a photograph, in that 'its appearance is the product of deliberate choices and also deliberate manipulations by the author,' and concluded that those aspects had been copied.

In other words, the original wasn't simply a photograph of something but a specifically processed piece of artwork, and the second piece attempts the exact same style and processing. The defendant commercially used the original without licensing it from the plaintiff and was sued by his company, and the second photo was only taken afterward to avoid paying the licensing fee, so the intent of the photo was specifically to copy the original and not borne of parallel-developed artistic expression.

So to say it's a "non-copied photo" is, in my opinion, wrong.

Howeverthe comments to the article also point out that this kind of shot is common: example [framingdoctor.com.au] , example [ukbestguide.com] , and example [popartuk.com] (note that these pictures have no dates provided). The article says alternative examples were in fact brought up in court, but the judge said they worked against the defense because they "served to emphasize how different ostensibly independent expressions of the same idea actually look." But I think they're all a close enough idea that the differences in angle and position don't serve to make them different enough, because the core idea of all the pictures is this specific London red bus in front of a monochrome Big Ben scene.

If it can be proved that there existed images like this before 2006, then the plaintiff shouldn't have won, but apparently, the examples given in court were undated.

Re:Misleading to call it "non-copied" (-1)

Anonymous Coward | more than 2 years ago | (#38825689)

What if I choose to non-process my photo? Is every other similarly non-processed photo of the same thing a copyright infringement?

Re:Misleading to call it "non-copied" (1)

johnsnails (1715452) | more than 2 years ago | (#38825867)

Let google do the hard work... http://goo.gl/yqR3w [goo.gl] not sure if this will work...

Re:Misleading to call it "non-copied" (5, Insightful)

Anonymous Coward | more than 2 years ago | (#38825725)

Ideas aren't and shouldn't be protected by copyright. This is a dangerous, if unsurprising, precendent. Big copyright is succesful in their quest to limit creation and people like you will be cheering them on right up until your cheering is ruled to infringe on something or another.

Re:Misleading to call it "non-copied" (3, Insightful)

Anonymous Coward | more than 2 years ago | (#38825877)

"Ideas aren't and shouldn't be protected by copyright. This is a dangerous, if unsurprising, precendent."

The idea isn't. The point is that a derivative work is when you look at someone's work and make a similar one that you would not have produced without first viewing the original (at least in the US). If you are a derivative work, then you can be subject to copyright infringement. This has always been the case.

Consider Snoopy. If I look at the snoopy character and draw a similar dog called Smarpy, which isn't quite the same, and perhaps make him a comic book character, is that a derivative work? Sure it is. Same deal for the photo. It is a complete defense in the US though, to prove you never saw the original.

Re:Misleading to call it "non-copied" (5, Interesting)

Anonymous Coward | more than 2 years ago | (#38825961)

Apples and oranges. As pointed out below by someone else, photos are barely copyright-able at all, because they're simply a recording of something. Your example of Snoopy is something entirely different. Furthermore, even in derivative works fair use generally applies, meaning it's still OK.. The main reason you can't reproduce things like Snoopy is because they're trademarked.

Re:Misleading to call it "non-copied" (5, Insightful)

Anonymous Coward | more than 2 years ago | (#38826019)

This has always been the case.

No it hasn't. All i have to say from your comment is that you know absolutely zero about the human creative process. The Beatles mimicked elvis and the crickets. Mickey Mouse is a derivative of Oswald the Lucky Rabbit (with slightly different ears) and from vaudeville and minstrel shows before that. Take any creative work of value-- anything-- music, literature, movies, paintings-- and I can guarantee you it was influenced by an earlier artist whose formative efforts involved watching and learning from whatever came before.

Every creative work, much like scientific advancements, stands on the shoulders of and is influenced by its predecessors. Culture doesn't self-generate spontaneously-- and when it comes to copyright, is the EXPRESSION of the idea in a fixed medium that counts, not the idea in and of itself.

That this work should be found to violate copyright, is in my opinion, nuts.

Re:Misleading to call it "non-copied" (1)

Anonymous Coward | more than 2 years ago | (#38826031)

"It is a complete defense in the US though, to prove you never saw the original."

I find that hard to believe. Do you have a link to back that up?

Re:Misleading to call it "non-copied" (5, Insightful)

Anonymous Coward | about 2 years ago | (#38826121)

The point is that a derivative work is when you look at someone's work and make a similar one that you would not have produced without first viewing the original

Congratulations. You just abolished every form of art because every single artist in history did this at least in the beginning when he was still learning. Sorry, no more new artists. Got to protect corporate profits.

Re:Misleading to call it "non-copied" (3, Insightful)

Anonymous Coward | more than 2 years ago | (#38825925)

Yup. Even though what Overly Critical Guy says is quite correct in technical point, the fact is that there IS an absolute line in the sand and this decision crosses it. Its time to start scaling copyright right back to zero, its time has obviously long passed.

Re:Misleading to call it "non-copied" (4, Insightful)

Overly Critical Guy (663429) | more than 2 years ago | (#38825935)

I'm not "cheering" anything. I'm saying that the photograph is clearly copied from the other on an artwork level--that being the artistic expression comprised of the subject matter, processing, and overall "tone". It's also a matter of fact that it was specifically intended to be a copy of the original.

I mean, if you saw a movie called "Triassic Park" with a logo using the same font as the original and a different angle for the T-rex silhouette, and the same storyline but with different actors and slightly different shots, and a soundtrack that resembled the original but for a few changed notes, you'd still consider it a rip-off of Jurassic Park. At some level, it's just common sense.

UK copyright law covers "intellectual creation" (1)

Anonymous Coward | about 2 years ago | (#38826089)

Ideas aren't and shouldn't be protected by copyright

UK copyright law covers "intellectual creation" in so-called "artistic works," which covers photographs. All this stuff is listed in the online text of the ruling linked in the article.

Re:Misleading to call it "non-copied" (5, Insightful)

mark-t (151149) | more than 2 years ago | (#38825729)

Except for one key fact...

You cannot copyright an idea.

That is utterly incontrovertible. And so yes... he copied something. He copied the idea. But that is *ALL* that he copied. The original photographer does not own a copyright on that idea, he owns a copyright on the photo.

The second photographer did not copy the original photographer's photo. He copied the *IDEA* that the original photographer had.

Re:Misleading to call it "non-copied" (0)

Anonymous Coward | more than 2 years ago | (#38825797)

Welcome to the new world. Everything you thought you knew about law means nothing...

Re:Misleading to call it "non-copied" (4, Insightful)

MightyMartian (840721) | more than 2 years ago | (#38825853)

The law is nothing. Everything you thought you knew about human cultural transmission means nothing. We are now living in a world constructed completely of lawyers, by lawyers and for lawyers. What a sad, pathetic, worthless place we've made for ourselves, and for what? So some fucking cunt can harass fellow photographers over a fucking picture most people won't even see?

Re:Misleading to call it "non-copied" (0)

Anonymous Coward | more than 2 years ago | (#38825989)

Well said. And I completely agree with you. It's turned into a piece of shit by these assholes.

Re:Support from another link... (0)

Anonymous Coward | more than 2 years ago | (#38826011)

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

By Sixpm (Jan 26, 2012 at 04:21:56 GMT)

It saddens me when I see that we all have been brainwashed and indoctrinate to fight for survival or for money, which is just a tool for mass control. Isn't it time for people to wake up that our world is full of abundance and scarcity was created to manipulate the masses into believing that we have to fight in order to get fed?

Our world is free for all to share, to enjoy all of our creativity, copyright law and patent laws are just a few 'regulations' to make sure we are 'trapped' in our own selfish mindsets to maintain our selfish ways of life.

Wake up and to realise that we are all living on a prison planet, undermine and controlled from the moment we're born. No one owns another, so the idea of one has the 'right' over another is totally absurd. Peace out!

Men are moved by two levers only— fear and self interest.

Napoleon Bonaparte

For the love of money is the root of all evil: which while some coveted after, they have erred from the faith, and pierced themselves through with many sorrows.

The Bible (King James Version) 1 Timothy 6:10

This is why life on this planet is in such a mess for most of the people on it.... :(

Re:Misleading to call it "non-copied" (5, Insightful)

snowgirl (978879) | about 2 years ago | (#38826103)

The law is nothing. Everything you thought you knew about human cultural transmission means nothing. We are now living in a world constructed completely of lawyers, by lawyers and for lawyers. What a sad, pathetic, worthless place we've made for ourselves, and for what? So some fucking cunt can harass fellow photographers over a fucking picture most people won't even see?

Dude, that's the world Jesus was purportedly born into. Have you seen how highly-observant Jews "haggle" over their mitzvot, and debate them and argue about them looking for essentially loopholes and such?

A world defined by legal red tape is hardly a new invention...

Re:Misleading to call it "non-copied" (2)

Dahamma (304068) | more than 2 years ago | (#38825915)

And since it's estimated that less than 10% of any ideas are original, according to this judge 90% of the population is guilty of copyright infringement!

(and I made up the entire statement above without any reasonable proof or evidence, but I'm sure someone has thought it before so don't blame me, I'm just quoting someone else's idea...)

Re:Misleading to call it "non-copied" (0)

Anonymous Coward | more than 2 years ago | (#38826025)

0% of any ideas are entirely original, and 100% of the population is guilty of copyright infringement.

FTFY

Statements from the full judgement (2)

Overly Critical Guy (663429) | more than 2 years ago | (#38826041)

The full judgement is here [bailii.org] that provides the legal basis for the decision, which states that copyright covers "intellectual creation". Specifically, note the following in the "Subsistence of copyright" section:

17. Copyright subsists in original artistic works (s1(1)(a) of the Copyright Designs and Patents Act 1988). "Artistic work" means "a graphic work, photograph, sculpture or collage irrespective of artistic quality" (s4(1)(a)). "Photograph" means a "recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film" (s4(2) of the 1988 Act).

18. At trial it was common ground that the impact of European Union law meant that the judgment of the CJEU in the Infopaq case (C-5/08 [2010] FSR 20) was such that copyright may subsist in a photograph if it is the author's own "intellectual creation". After trial it was also common ground that the recent judgment of the CJEU in the Painer case (C-145/10, 1st December 2011) was to the same effect and did not necessitate further submissions from the parties.

19. Mr Edenborough also referred me to and relied on O (Peter) v F KG ([2006] ECDR 9) decided on 16th December 2003. This is a decision of the Austrian Oberster Gerichtshof (Supreme Court). It is a court which comprises judges with considerable expertise in intellectual property matters. The court there was considering a claim to copyright in photographs of grape varieties used as illustrations in a book. They were applying an approach to copyright based on the principle that the work must be the creator's own intellectual creation. They held (in translation):

In accordance with more recent jurisdiction of the finding Senate, photographs are to be considered photographic works in the sense of s.3(2) UrhG (Copyright Law), if they are the result of the creator's own intellectual creation, with no specific measure of originality being required. What is decisive is that an individual allocation between photograph and photographer is possible in so far as the latter's personality is reflected by the arrangements (motif, visual angle, illumination, etc.) selected by him. Such freedom of creation does certainly exist not only for professional photographers with regard to works claiming a high artistic level, but also for a lot of amateur photographers, who take pictures of everyday scenes in the form of photos of landscapes, persons and holiday pictures; also, such photographs shall be deemed photographic works, as far as the arrangements used cause distinctiveness. This criterion of distinctiveness is already met, if it can be said that another photographer may have arranged the photograph differently []. The two-dimensional reproduction of an object found in nature is considered to have the character of a work in the sense of copyright law, if one's task of achieving a representation as true to nature as possible still leaves ample room for an individual arrangement [].
(Paragraph 2 1. of the judgment. References have been omitted.)

20. Although the language used in this judgment differs from the way in which an English court would traditionally express itself in a copyright case, I believe there is no difference in substance between the law as applied here by the Austrian Supreme Court and the law here. A photograph of an object found in nature or for that matter a building, which although not natural is something found by the creator and not created by him, can have the character of an artistic work in terms of copyright law if the task of taking the photograph leaves ample room for an individual arrangement. What is decisive are the arrangements (motif, visual angle, illumination, etc.) selected by the photographer himself or herself.

WHERE DOES IT END! (5, Insightful)

Frosty Piss (770223) | more than 2 years ago | (#38825737)

So what you are saying, OCG, is that attempting to avoid a licencing fee by using a similar but different piece of "intellectual property" should be illegal?

Apple Computer agrees with you. As you know, they own flat glassy tablets with rounded corners. Don't try to avoid patent licencing by making similar but different tablets...

Re:WHERE DOES IT END! (1, Informative)

Overly Critical Guy (663429) | more than 2 years ago | (#38826017)

So what you are saying, OCG, is that attempting to avoid a licencing fee by using a similar but different piece of "intellectual property" should be illegal?

Like I said, if there existed examples of common red London bus/b&w Big Ben artwork before 2006, then that would constitute prior art, and the plaintiff shouldn't have won. However, TFA says that the defendant could not provide dates for the examples he offered.

Apple Computer agrees with you. As you know, they own flat glassy tablets with rounded corners. Don't try to avoid patent licencing by making similar but different tablets...

Apple isn't suing over glassy tablets with rounded corners. It's the overall combination of similar design elements that obviously came from Jonathan Ive's design studio which no tablets or smartphones looked like previously: the exact same black border with the same spacing, the same chrome back with just enough peeking over the sides to frame the black front, the same hardware dimensions, the same earpiece slit, the same software icon grid with in many cases the exact same icons...I mean, come on [regmedia.co.uk] . That entire combination of so many visual and behavioral similarities is clearly a design copy.

Take a look at these iOS devices [imgur.com] and you can all the industrial design elements that the copies incorporate to resemble the originals as closely as possible. It's not just simple variations but complete recreations, without having done the design work that Apple had to go through to come up with them (Jobs probably had a whip). There weren't smartphones or tablets that looked like those devices before Apple put those designs out on the market.

And by the way, the previous link is a trick. Those are Toshiba devices, not iOS devices. You literally can't tell the difference from the picture. That's how much of a clone they are. So I don't blame Apple at all for going after competitors who just repackage their work, especially because, as has been mentioned before around here, if the knock-offs are poorly made or faulty in some way, it can actually damage Apple's brand because the devices are intentionally made to look so similar.

Re:Misleading to call it "non-copied" (0)

Anonymous Coward | more than 2 years ago | (#38825759)

Now if you create fan art, expect a DMCA takedown notice.

Wait, you probably could've expected that anyway..

Re:Misleading to call it "non-copied" (2)

jythie (914043) | more than 2 years ago | (#38825793)

Not likely since this was a UK court decision and DMCA is a US law.

Though it is not unusual for US courts to reference decisions in the UK or Europe (since the rest of the world does not seem to legally exist) so I would not be surprised if this comes up domestically....

Re:Misleading to call it "non-copied" (1)

camperslo (704715) | more than 2 years ago | (#38825763)

I wonder what the company that wrote the effects software has to say about this.

Re:Misleading to call it "non-copied" (1)

timeOday (582209) | more than 2 years ago | (#38825959)

The effects don't appear to be anything special. It's just a shot of Big Ben with a double-decker bus, converted to monchrome, with the bus colorized red to make it jump out. No reason to think they used the same software - except that so many people use photoshop there's a good chance these two did.

Re:Misleading to call it "non-copied" (5, Insightful)

CrystalFalcon (233559) | more than 2 years ago | (#38825775)

It's not misleading in the slightest to call it non-copied for the simple reason that it was not a copy, and that the copyright monopoly only covers direct copies, nothing else.

Yes, they used similar inspiration and similar techniques. But that is specifically not covered by the copyright monopoly, which has always been about protecting a specific expression of a creative idea, and never the idea itself.

For more, see this article on Falkvinge on Infopolicy [falkvinge.net] .

"Intellectual creation" (2)

Overly Critical Guy (663429) | about 2 years ago | (#38826061)

In the UK law cited in the text of the full judgement, copyright covers "intellectual creation". The judge interpreted the second photo as a reproduction of the first photo's intellectual creation and decided that was an infringement.

Re:Misleading to call it "non-copied" (5, Informative)

polymeris (902231) | more than 2 years ago | (#38825795)

Also, the second photo was intentionally made to avoid licensing fees from using the original.

original, you say? [google.com]

Re:Misleading to call it "non-copied" (1)

anubi (640541) | more than 2 years ago | (#38825929)

How much of this will we tolerate? Of course, the second photo was made to avoid licensing fees from the original!

Am I about to be sued by McDonalds because I went home and grilled my own burger? Or will Burger King get sued?

Wasn't competition and free markets the basis of free enterprise?

If I declaw a cat, do I assume the responsibility of feeding and protecting it?

If I can persuade Congress to pass law telling someone else he can't do something cause I did it first, do I incur responsibility to accept taxation so the other guy, at my insistence, foregoes doing this?

I pay for my right to force others not to camp on my yard - its called property tax. Its a bit over 1% of assessed value. Can one claim "rights" without paying for that right? Isn't that theft?

As Congress transforms this nation from a production-based society to an ownership-based society, our tax codes must be updated accordingly or I guarantee we will have significant social unrest.

Land of the free, home of the brave???

Land of the wimps if you ask me. ( yes, I am a wimp too ).

RTFA (0)

Anonymous Coward | about 2 years ago | (#38826059)

If you'd RTFA, you'd see that it says the judge was shown other examples of this idea, and said that they were not only undated (and so couldn't be determined to have originated before 2006, the year of the first photo's creation) but also different enough to actually hurt the defendant's case, because they provided examples of expressing the basic idea without infringing.

Re:Misleading to call it "non-copied" (5, Informative)

martin-boundary (547041) | more than 2 years ago | (#38825807)

The judge is an idiot, or maybe he doesn't go much to the movies. The compositional idea isn't original at all. girl in the red coat [wikipedia.org]

Not the same compositional idea (5, Informative)

SuperKendall (25149) | more than 2 years ago | (#38825841)

I think to say the sky/building contrast was a choice is wrong; That's simply a byproduct of B&W conversion in a place that has uniformly grey skies a lot of the time. Perhaps if the artist had done extra work to get the sky that color but having done some B&W conversions I very much doubt that is the case.

The one actually coped element is simply the treatment of the red bus in color contrasting with everything else. But that practice was in use well before 2006.

The rest of the work compositionally speaking, is totally different - the relation of the bus to the buildings, even the relation of people to the bus or the use of people within the image is totally different.

I guess he just had a really inept defense because this judgment should not have ended up this way based on that image.

The Judge is an idiot (2, Insightful)

Anonymous Coward | more than 2 years ago | (#38825843)

"a specifically processed piece of artwork"

There's no such thing, he had no IP rights to the 'partial desaturation' technique, there is no special right to using that technique on some scenes. The judge here is trying to extend copyright to something it doesn't cover.

Photography can and always was at the fringe of what could be copyrighted, since its just a mechanical record of a fact. What the judge is claiming is that by applying a processing technique to that fact (which the guy had no special exclusive on), somehow creates something more. He then goes on to further extend that to say it covers a class of similar photographs.

i.e. if X is his copyright, copyright law says infringement = X

Judge is saying that X+Y creates a right (X+Y-0.1) Infringment (X+Y+0.1)

However the only thing that could extend photography copyright into a CLASS of similar images is the 'Y' and Y is zero, he has no special right to that technique and its a common technique, Y is zero.

In doing so he is devaluing that technique. It would be like I invented a super machine, patented it, and the first user claimed that applying that to it's purpose created copyright and he holds the copyright, ergo I cannot profit from my invention!!

So that technique is reduced by this decision.

This should and will be overturned on appeal. It's a garbage decision. The judge should be ashamed, idiot.

Sepia filter (0)

Anonymous Coward | more than 2 years ago | (#38825921)

Step 1. Buy a digital camera
Step 2. Take photographs of popular monuments using my cameras Sepia filter.
Step 3. Sue everyone using the sepia filter for copyright infringement of my photographs.
Step 4. Sue camera manufacturers for putting sepia filter in their cameras, aiding copyright infringement.
Step 5. Profit.

That Judge isn't fit to deal with copyright infringements if he doesn't even understand the basis for copyright.

Re:Sepia filter (0)

Anonymous Coward | about 2 years ago | (#38826079)

And you shouldn't comment about copyright if you're not a lawyer and didn't even read the judgement. The UK Copyright Designs and Patents Act 1988 says copyright covers "intellectual creation" in photography.

Re:The Judge is an idiot (0)

Anonymous Coward | about 2 years ago | (#38826077)

There's no such thing, he had no IP rights to the 'partial desaturation' technique, there is no special right to using that technique on some scenes. The judge here is trying to extend copyright to something it doesn't cover.

The UK Copyright Designs and Patents Act 1988 cited in the judgement says that there were IP rights to the piece. Is ANYONE reading the damn article?

I'll bite (5, Insightful)

slew (2918) | about 2 years ago | (#38826087)

You don't get it (nor do many of the folks on this thread).

Let's put this into other terms. Let's say there is a movie (say the matrix for argument's sake), and someone watches the movie in Brazil and says, "hey, I like that movie, I'd like to license that movie and sell it in Brazil". Then they try to negotiate a license to distribute the movie, but can't come to an agreement on price. Then they get another studio to make a movie about a future world where machines take over and use people as batteries and trick them into not committing suicide by putting them in a virtual reality world. Probably won't get sued. However, if they make the same movie and put in bullet time special effects into the movie and the script has similar scene order and shot perspective and they end up calling the movie "The Tensor", many folks might think they crossed the line (maybe).

Why? it would have copied so many aspect of what made the Matrix, the Matrix, that it is considered a derivative work that lacks any transformativeness [wikipedia.org] . If they, however, added some artistic element (say like make it a parody like space balls vs star wars), such that the work could be considered a new work under copyright law. Similarly, if the movie had the bullet time effects, but say was a movie about terminators, well, that's not the same movie. Or if the movie didn't have digital rain, or bullet time effects, but was say a movie with a plot like say dark city, that had a different effect say like moving buildings... etc...

It doesn't have to be an exact copy to be a "copy" under copyright law. Otherwize, someone could hire an army of people from some 3rd world country, give them the linux source code after the pre-processor and have each person memorize a function and type in another version from memory with variables converted to camelCase reverseHungarian and all the for loops turned into while loops and maybe some switch statements converted to if/else, run it through a pretty-printer and re-intepreted by a few code cleaning scripts and auto-doc tools to make some comments, and voila! a non GPL version of Linux could emerge! NOT! That work would also likley be inspired enough by linux that it wouldn't pass the test of being a new work (unless say they made it a microkernel instead of a megakernel which would be "new" or maybe "old" depending on your point of view)

Re:Misleading to call it "non-copied" (0)

Anonymous Coward | more than 2 years ago | (#38825885)

Interesting that the original was so much better.

Re:Misleading to call it "non-copied" (1)

Anonymous Coward | more than 2 years ago | (#38825895)

By your logic almost all FPS games could be seen infringing. What if two people independently have the same idea. The judge is thinking like it is a patent when he should be thinking more about copyright. The infringer should know he is copying something. Another good example would be the Star Wars collaboration. George obviously created a lot of the concepts they used, but they didn't copy any of his material. A question needs to be asked about if copyrights make sense. There is no clear indication when something gains enough sophistication to deserve copyright. Personally I don't believe in copyrightable material existing.

Re:Misleading to call it "non-copied" (2)

Overly Critical Guy (663429) | about 2 years ago | (#38826097)

By your logic almost all FPS games could be seen infringing.

Dude, it's not my logic. I'm just explaining why the judge said what he did. Apparently, copyright law in the UK covers something called "intellectual creation" including photographs.

As for FPS games, if there was a game called Half-Lifer that took place at the Black Plateua Research Facility starring Gordan Freelam and had the same storyline but with slightly different levels and character designs, yeah, I'd imagine Valve would be a-suin'.

Re:Misleading to call it "non-copied" (1)

DragonTHC (208439) | more than 2 years ago | (#38825913)

Re:Misleading to call it "non-copied" (1)

Anonymous Coward | more than 2 years ago | (#38825943)

The judge is not describing a copyright situation he is describing a patent. The original author does not own a patent on the specific process he used to create the photograph. You cannot copyright an idea. This judge is clearly and idiot and I truly hope this is knocked down on appeal and the original judge called out for his stupidity in the appellate decision.

Re:Misleading to call it "non-copied" (1)

careykohl (682513) | more than 2 years ago | (#38825981)

So if someone takes a picture of something you are actually arguing that anyone else who ever takes a picture of that thing again is infringing some mythical copyright? That is preposterous!

Art is art!

And yes, if you charge more then someone can afford for your art, they should always be allowed to recreate it themselves, and as precisely or imprecisely as they wish.

If someone wishes to use a particular photo as a trademark, or logo of some kind that is an entirely different issue from copyright.

Re:Misleading to call it "non-copied" (0)

Anonymous Coward | more than 2 years ago | (#38825985)

I'm the anonymous coward who submitted this story, and I stand by my title and summary. In my view as an enthusiast photographer, the two photos are clearly different, and the second is not a copy of the first. What you call "angle" (and I call "composition") is a lot of what makes or breaks an image. Photographers strive to place objects in the frame so that they relate to each other and to the frame and lead the eye (here is an interesting article on composition [photoinf.com] ).

These two photos are completely different in the way the shot was composed -- the original photo is by far superior in my opinion... For example, the original image has a clear "direction", as the line of the bridge, the direction in which the viewer knows the bus is moving, and the staircase on the bottom left all lead the eye from the right to the left of the frame. In the second photo there is a less strong sense of direction: your eye is mostly drawn just to the bus (and then maybe moves a little towards the bottom left, but the lanes on the bridge converge in the opposite direction, leading the eye back up). I could go on about the differences -- the first photo is much more subtle in its use of color emphasis because the bus takes up a much smaller part of the frame, etc.

Re:Misleading to call it "non-copied" (5, Insightful)

erroneus (253617) | more than 2 years ago | (#38825999)

Actually, according to the summary, the composition was different as was the angle. It was the subject and the 'style' which were the same.

This is an extremely slippery slope where the arts are concerned. EVERY bit of art owes style, composition and subject matter to other, previous works by other people. This judge has essentially ruled that by copying someone's style and using the same subject, they have copied the work of another. That's a bit problem. It's like "patenting" art.

In order to improve our own art, at times we seek to duplicate the styles of other art we enjoy. As a former art student, I know very well about the application of style in classical arts such as sculpture, painting and sketching. I also know very well about the digital arts where styles and methods used in creating manipulating graphics are often borrowed, simulated and quite often duplicated by simply using the same photoshop filters.

We have had discussions about photography and objects on public display before. It's simply ridiculous to say that images of such objects fall under copyright. And in this case, the use of color on an object while not having color on all other things has been going on for a VERY long time. This technique, I believe was likely born of marketing and advertising drives, is far from new and far from being "ownable" by anyone in particular. The technique is fairly common and fairly simple.

This is a case of a judge simply not knowing how art works and then ruling on it setting up a precedent with huge unintended consequences.

Re:Misleading to call it "non-copied" (0)

Anonymous Coward | about 2 years ago | (#38826111)

In the music industry, this is called a sound-alike. Video commercial producers ask for sound-alikes when they cannot secure the rights of the original. Either because the artist refuses or because the price is simply too high.
This proces is perfectly legal if not very annoying. Some commercials go a step further and als hire a look-alike of the artist to play in the commercial, suggesting endorsement from the artist. This, in my opinion, is fraud. But still not copyright infringement.

The Judge Wears a Wig that is Copied From Others (4, Funny)

itsybitsy (149808) | more than 2 years ago | (#38825637)

without their permission, toss the judge in the Thames along with his ruling.

Re:The Judge Wears a Wig that is Copied From Other (0)

Anonymous Coward | more than 2 years ago | (#38826047)

There is a special place at the bottom floor of the Tower of London for the judges like this, just by the Thames. The wig shall not help him to escape, this time.

Actual 2 photos (4, Informative)

Frankie70 (803801) | more than 2 years ago | (#38825649)

Link here [swanturton.com]

Re:Actual 2 photos (4, Insightful)

Digital Vomit (891734) | more than 2 years ago | (#38825697)

As unbelievably stupid as this ruling is, actually seeing the two images side-by-side adds an entirely new dimension to the sheer idiocy.

Re:Actual 2 photos (2, Informative)

Anonymous Coward | more than 2 years ago | (#38825699)

That's a PDF link. Here are the photos linked in the article: http://3.s.img-dpreview.com/files/news/1166562748/Fielder.jpg

Re:Actual 2 photos (1)

polymeris (902231) | more than 2 years ago | (#38825751)

+5 Informative?

The shots are in the linked article by TFS, too.

Anyways, don't know what the fuzz is about. Neither is a good photo, (Bleargh, selective color) or very original (I am sure there are zillions of pics of London's landmarks).

Re:Actual 2 photos (2)

justforgetme (1814588) | more than 2 years ago | (#38825755)

That's what happens when you let monochrome/boring people rule over domains they haven't
got the slightest clue about.

No, seriously anyone who understands photography (or art) will very clearly tell you that those
two pictures do not represent the same thing.... Damn justice! You can do better than that!

*sigh* (0, Flamebait)

Anonymous Coward | more than 2 years ago | (#38825655)

Copyright is such garbage.

We can only hope... (1)

mpetch (692893) | more than 2 years ago | (#38825657)

That this judgement isn't reproduced in the future

Re:We can only hope... (1)

afidel (530433) | more than 2 years ago | (#38825679)

If the UK has a sane legal system the judgement will be overturned and the judge smacked. I mean a picture of a red double decker with a black and white big ben isn't exactly a unique or novel concept. I mean what's next, copyrighting a woman in a red dress popped from a black and white photo?

Re:We can only hope... (1)

whoever57 (658626) | more than 2 years ago | (#38825711)

Someone in the UK must have a photograph that is sufficiently similar that this judge would consider that that the plaintiff in the case was himself infringing on someone else's work.

On further review, bullshit (5, Insightful)

SuperKendall (25149) | more than 2 years ago | (#38825665)

I was thinking, I could see the point - if you nearly duplicated the angle, and used a similar treatment then yeah I think a photo could be close enough for infringement even if not the same.

But looking at the actual shot, the angle is totally different. The "treatment" is simply the (by now VASTLY overused) technique of leaving one object in color with the rest greyed out. Come on! That is in use everywhere as a common element, and I'll warrant it was even in use a fair amount before the original was taken. If ever there was a call for some kind of copyright "prior art" this is it.

Fine all the tourists. (5, Insightful)

Anonymous Coward | more than 2 years ago | (#38825673)

I bet big ben has been photographed from nearly every angle, under nearly every lighting condition and season. If this holds up, they should just issue tickets to anyone holding up a camera in front of it. That and station police at every location marked as a scenic wayside.

If inspiration is copyright infringement.... (0)

mark-t (151149) | more than 2 years ago | (#38825675)

... then why didn't Apple win their "look&feel" lawsuit against Microsoft when they came out with Windows?

Re:If inspiration is copyright infringement.... (1)

Zimluura (2543412) | more than 2 years ago | (#38825735)

then both ms and apple owe xerox quite allot of money.

Re:If inspiration is copyright infringement.... (0)

Anonymous Coward | more than 2 years ago | (#38825771)

Apple did pay Xerox upfront for the rights, MS on the other hand

Re:If inspiration is copyright infringement.... (1)

jamstar7 (694492) | more than 2 years ago | (#38825745)

The BSA wasn't as strong as it is today. If the Apple GUI and Windows came out tomorrow, Apple would win and everybody would be cheering on Microsoft as the underdog.

Re:If inspiration is copyright infringement.... (1)

pbjones (315127) | more than 2 years ago | (#38825873)

because a decade had passed and it was too hard to then identify what was 'new' in the original versions of MacOS vs what had been included in windows. And NO, Apple didn't steal the look and feel from Xerox, they used the idea of a window and mouse. The irony is that the current versions of Win and Mac GUI are based on NeXTSTEP/OPENSTEP.

Re:If inspiration is copyright infringement.... (0)

Anonymous Coward | more than 2 years ago | (#38825965)

... then why didn't Apple win their "look&feel" lawsuit against Microsoft when they came out with Windows?

Because during the court proceedings ample evidence was offered showing that Apple's "look & feel" wasn't unique and copyrightable. And even if it had been, there was plenty of prior art so it would have been Apple and MS owing somebody else money.

The MPAA and Porn will save the day. (2)

OzTech (524154) | more than 2 years ago | (#38825683)

The film and porn industries won't sit by and let this one survive because it will put them all out of business overnight.

Re:The MPAA and Porn will save the day. (1)

jythie (914043) | more than 2 years ago | (#38825813)

Eh, MPAA members have done a good job over the years of somehow convincing judges that their near duplication of other people's work counts as 'fair use'... so they are safe.

Imagine that (1)

Anonymous Coward | more than 2 years ago | (#38825685)

This is exactly the bullshit we reap when we submit to the whims of the copyright lobby. Is anyone surprised at the general apathy most people have regarding upholding copyright?

They will ruin copyright (4, Insightful)

mbone (558574) | more than 2 years ago | (#38825713)

10 years ago I said that the people pushing copyright everywhere would eventually wind up with copyright nowhere (i.e., with no copyright at all, due to a total loss of public support). This sort of crap does nothing to change that feeling.

This is how you do it. It's the whole damned idea. (5, Informative)

CrystalFalcon (233559) | more than 2 years ago | (#38825719)

Yes, the images are arguably similar. But there is absolutely no merit whatsoever to the claim that one would be a copy of the other, thus violating the copyright monopoly. What the judge has done here is to set a precedent that states that the monopoly does not just cover the creative work, but extends to a general creative idea, which completely shatters the traditional notion that the copyright monopoly only covers a specific expression of an idea, and never the idea itself.

So what’s the big deal, then? In this case, they sought to recreate the image and took a similar one. Why is that not a violation of the copyright monopoly?

Because that’s exactly how you do it if you don’t want to pay a license fee on the original terms. You create a similar work yourself, entirely by yourself, and compete. It’s the whole damned idea.

Article by Falkvinge on this verdict [falkvinge.net] .

Re:This is how you do it. It's the whole damned id (2, Insightful)

Anonymous Coward | more than 2 years ago | (#38825957)

The common law rule for photographs is well known and straightforward, and is the same in the US and England. The three elements are 1) RENDITION (angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques, etc); 2) TIMING; and 3) ARRANGEMENT (manipulation of the objects in the scene). None of these elements are necessary, nor are they individually sufficient. But this is your starting point. Nothing in that case is even remotely shocking from a legal theory perspective.

It's also worth noting that the touch stone of copyright is originality. It doesn't matter if your photograph looks exactly like another if you in fact had never seen that other photograph. But originality matters because copyright does extend to the "idea" of the work. In other words, when lawyers say that copyright covers "expression", they don't just mean the physical work, but the abstract, mental expression. The idea/expression dichotomy isn't about real versus conceptual. Both are conceptual. The different is fundamentally one of degree. If your mental expression derives from someone else's, and you fix that expression into a physical work, then you've violated the copyright. Right or wrong. This is very basic copyright law.

The reason why you don't see more of these photograph cases is that the claimant has to prove other elements, too, including similarity, actual copying (at a minimum showing that the violator had access to the other work), and originality in the claimant's work. This isn't very easy, especially for photographs lacking the third element of arrangement. Note that it appears to have had the first element (rendition) in spades.

What about Google's Streetview of my house? (1)

Anonymous Coward | more than 2 years ago | (#38825721)

If I had taken a color picture of my house from the street prior to the Google Streetview car, are they infringing on my copyright? Their picture would look closer to mine than the two in this case.

Am I now prohibited from taking street view pictures of my house if I had not done so previously?

Re:What about Google's Streetview of my house? (1)

El Rey (61125) | more than 2 years ago | (#38825851)

I knew I should have tried to sell Google a picture of my house...

Neither pic is original (0)

Anonymous Coward | more than 2 years ago | (#38825811)

Just ask "Little, yellow, different" Nuprin.

Both pictures are clearly infringing (0)

artor3 (1344997) | more than 2 years ago | (#38825815)

Both pictures are clearly infringing on Louboutin's trademark on "red" [nytimes.com] . Not a particular shade, or a particular usage. Just, you know, red.

The red bus thing on grey and System V is... (4, Insightful)

AHuxley (892839) | more than 2 years ago | (#38825817)

http://www.ikea.com/us/en/catalog/products/40152586/ [ikea.com]
Seems like a lot of artists should get some legal PO Box in the UK and a good UK lawyer. From patent trolling to art trolling?
As for the US Unix is Linux case, if only they had thought about UK law and followed the libel tourism trade :)
"When you go to the bookshop and look in the UNIX section, there's books on 'How to Programme UNIX' but when you go to the Linux section and look for 'How to Programme Linux' you're not gonna find it, because it doesn't exist""

What?? (1)

epp_b (944299) | more than 2 years ago | (#38825819)

First, it's not even close. It seems like the judge took a quick glance and thought, "derp, there's a bus, there's a pointy building, it's mostly black & white, yup they're the same."

Second, whether it's similar is hardly relevant. The "copy" wasn't made in 2 seconds by downloading it online. It's a separate and vaguely similar work, but not a "copy". A copy is exact or very close to it (this isn't).

If someone did all the work, bought all the gear, went to the same location, waited for the same conditions and created the image, it's not a copy. Knock-off, fake, second-tier, call it what you want, but its not a copy in the technical sense of the word. This technical sense is what copyright is supposed to deal with because copyright is a response to technology that makes duplicates of works more quickly than it takes to create the original.

Re:What?? (0)

Anonymous Coward | about 2 years ago | (#38826085)

If someone did all the work, bought all the gear, went to the same location, waited for the same conditions and created the image, it's not a copy. Knock-off, fake, second-tier, call it what you want, but its not a copy in the technical sense of the word. This technical sense is what copyright is supposed to deal with because copyright is a response to technology that makes duplicates of works more quickly than it takes to create the original.

Not even close. It doesn't matter how much it takes or costs to create the reproduction and it doesn't matter what "technology" was used. What matters is the artistic originality. If your work is artistically original enough, you might even be allowed to use exact copying as a technique without a license. On the other hand, if your work has no originality, even changing the medium doesn't shield you from copyright claims.

Apparently you can copyright ideas now. (2, Insightful)

flimflammer (956759) | more than 2 years ago | (#38825829)

This judge should be slapped.

Re:Apparently you can copyright ideas now. (3, Funny)

Anarchduke (1551707) | more than 2 years ago | (#38825859)

I already had that idea. I am now going to sue you for infringing on my entirely original idea of slapping the judge.

taking pictures of sunset/moon/generic x illegal (1)

Anonymous Coward | more than 2 years ago | (#38825835)

taken from same place (earth usually) having the same central subject.

there are so many examples. this is really poor judgement.

look and feel (1)

pbjones (315127) | more than 2 years ago | (#38825855)

Apple vs Microsoft all over again! I can see that if this is used for commercial purposes then there is a case to answer, the basic content and style is duplicated, although the photo is from a different position, it is clearly intended to duplicate eliments of the first photo.

Dirty vs Clean Programmer (1)

ToasterTester (95180) | more than 2 years ago | (#38825865)

One of the companies I worked for the legal department had to come to our dev team meeting. Some guy had been sending copies of his software to our developers. We had a new version of an add-on product coming out. He also made add-ons and knew was guessing the direction we were going and probably many aspects would be the same.

What our legal department said was if our programmer's have never seen the other guys program they are "clean" programmers and no copyright violation if similar things show up. If our programmers had seen or been show the other guys program then wrote similar thing they are "dirty" programmer and what they do would be copyright violation. So legal dept collected all the still sealed copies and held them then ripped the other guy a new one.

Now what is really strange is legal said if marketing sees the other guys product and then describes a feature to a programmer the programmer is still considered a "clean" programmer. Geez no wonder there is no consistency in legal decisions.

Re:Dirty vs Clean Programmer (0)

Anonymous Coward | more than 2 years ago | (#38826009)

"What our legal department said was if our programmer's have never seen the other guys program they are "clean" programmers and no copyright violation if similar things show up."

If they're not a COPY then this is irrelevant, even if they'd seen it.

You're missing the really big picture here, if it's not a copy, it's not covered by copyright. There is no class coverage of the underlying idea behind a photograph, there is no such right, no such law. The Judge is a buffoon.

Indiana Jones scene by scene using similar old movies:
http://www.youtube.com/watch?v=Ns8bG9AbfwM&feature=player_embedded

Buffoon, does he understand what damage he's done??

Notes on the scale (1)

fatalGlory (1060870) | more than 2 years ago | (#38825883)

If I was in the UK, now would certainly be the time to release a copyrighted sound-effect pack containing each note on the musical scale (let's say one set on piano and one on a slightly distorted guitar). Bam. Now I can apparently legitimately claim that essentially every song in existence infringes my copyright. Sure, the song uses my copyrighted notes in a particular arrangement, but they still recorded their own copy of middle-C to avoid paying the 100-euro-per-play licensing fee for using the middle-C from my sound-effect pack.

Ridiculous.

Hollywood Quakes (0)

Anonymous Coward | more than 2 years ago | (#38825889)

Romantic comedy writers across the world are frightened by this verdict.

Does anyone else want to eliminate copyright? (1)

EuclideanSilence (1968630) | more than 2 years ago | (#38825893)

The subjectivity of this legal argument, the subjectivity of fair use in general, the fact that it's impossible to browse the internet without unintentionally violating copyright, the enforcement of copyright being so infrequent and partial -- these characteristics on any law show that the law is a terrible idea. This ruling wasn't based on uncertainty of the facts of the case, it was based on uncertainty of whether the law had been broken at all when all the relevant facts are undisputed.

Furthermore, the terms on copyright are limited and the duration of copyright terms are arbitrary. If people really believed in copyright then there would be no limit on terms, or there would be a very soundly derivable reason for the limit to be exactly what it is set to.

Copyright is a law that gets 99% of it's support from the fact that it exists and people are afraid to challenge the status quo. Given that so many people even intentionally violate this law (which is not even properly a right since it places no demands on government other than general enforcement of laws), I really am astonished that the idea of eliminating copyright altogether is such an unpopular position.

Re:Does anyone else want to eliminate copyright? (0)

Anonymous Coward | more than 2 years ago | (#38826005)

Yes, I have for a long time. But anyone I tell thinks I am radical and extreme.....OK, they think I am really crazy when comes to this, tbh. I, however, think it is a no-brainer.

I believe that if it weren't for copyright and all IP we'd have advanced further ( e.g. technologically) by literally several hundred years.

We need to let go of the past, especially these business models ASAP, for humanity to survive as well as prosper. IP is keeping us hostage as savages.

Joel

historical analogy (1)

Max_W (812974) | more than 2 years ago | (#38825905)

In 1912 new automobile companies definitely infringed on horse cart companies.

But was it possible to ban automobile in the world? Or was the innovation by itself (automobile) stronger than the international legal system of that time?

Uh oh. Big Trouble (4, Insightful)

multimed (189254) | more than 2 years ago | (#38825973)

So all the people who have taken photos of people "holding up" the Leaning Tower of Pisa are in for a world of hurt, huh?

Re:Uh oh. Big Trouble (1)

headkase (533448) | more than 2 years ago | (#38826001)

Damn you, you beat me to it!

I'm holding up the tower! (1)

headkase (533448) | more than 2 years ago | (#38825995)

Wait until the tourist board for the "Leaning Tower of Pisa" get a hold of this! [google.ca] .

Oops! (1)

ioncann0ns (2540904) | more than 2 years ago | (#38826033)

My comment has a similar format to previous commentors.
My comment is over the same topic too!
Copyright violation here we come.

In all seriousness though, this is a horrible ruling, and sets a disturbing precident.
Yes, protecting artists' works are good, but these pictures aren't even that similar!
Copyright in it's current form is abused, if copyright spreads to ideas, we're all sunk.

Just another Mickey Mouse judge (1)

harvey the nerd (582806) | more than 2 years ago | (#38826035)

The Disney Company surely blesses you, if it doesn't already own you.

Appeal? (0)

Anonymous Coward | more than 2 years ago | (#38826043)

I would donate funds to an appeal of this ruling. Utterly absurd.

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