Copyright and Infringement of Photographs

The recent decision by the U.K. Patents County Court in Temple Island Collections Ltd v New English Teas Ltd & Nicholas John Houghton, raises an interesting (and troubling) issue relating to copyright and infringement of photographs. The Court found that the defendant had infringed the claimant’s copyright of which subsisted in a black and white photograph of a red Routemaster London bus travelling across Westminster Bridge with the House of Parliament in the background, by producing a similar image using these iconic London landmarks and with the same general form: grey scale Houses of Parliament and a red bus on the bridge.

The claimant’s intention was to create a single, modern and iconic scene of London. He stood on on Westminster bridge, where many tourists also stand with their cameras, and captured the image of a bus heading to the south side of the river and also including the other landmarks, i.e. Parliament, Westminster Bridge, and the river. Once the photograph was taken, the claimant manipulated it on his computer using Photoshop.  The red colour of the bus was strengthened; the sky was removed completely; the rest of the image was turned to monochrome save for the bus; some people present in the foreground of original photograph were removed; and the whole original image was stretched somewhat to change the perspective so that the verticals in the buildings were truly vertical. The defendants took four separate photographs of different aspects of the Houses of Parliament and a red Routemaster bus, and combined and manipulated these images to produce the resulting image.  The resulting claimant’s and defendants’ images were as follows:

Claimant's Work

Defendants' Work

The claimant contended the defendants’ work infringed its copyright in its image. The defendants denied infringement but did not advance a case of independent design. They contended that the question of infringement could be decided objectively based on a consideration of what is original about the claimant’s copyright work and second by conducting an objective comparison between the claimant’s and the defendants’ works. The defendants stated that for there to be infringement, a substantial part of that (i.e. the things in which the claimant has rights) must have been reproduced by the defendants.

The parties agreed that under both U.K. and European Union law, copyright may subsist in a photograph if it is the author’s own “intellectual creation”. With respect to the scope of photographic copyright, the Court cited and relied upon the commentary in the text book Laddie Prescott & Vitoria (4th Ed.) for the proposition that while the mere taking of a photograph is a mechanical process involving no skill at all and the labour of merely pressing a button, there is room for originality in photography in the following aspects:

(i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;

(ii) Residing in the creation of the scene to be photographed; and

(iii) Deriving from being in the right place at the right time.

The Court held that the claimant’s work was original because it was the result of the claimant’s intellectual creation both in terms of his choices relating to the basic photograph itself: the precise motif, angle of shot, light and shade, illumination, and exposure and also in terms of his work after the photograph was taken to manipulate the image to satisfy his own visual aesthetic sense. The fact that it was a picture combining some iconic symbols of London did not mean the work was not an original work in which copyright subsists. The court considered the manipulations by the claimant to constitute a fourth category of works to which copyright would attach.

With respect to infringement, the Court applied the principle that copyright is infringed by reproducing the whole or a substantial part of a work in a material form. A “substantial part” is a matter of quality not quantity. The Court found that the defendants’ work infringed the claimant’s copyright because the common elements between the defendants’ work and the claimant’s work were causally related and had been copied. The Court summarized its view of what had been substantially reproduced in terms of composition and visual elements. The Court noted that elements of the overall composition of the claimant’s image which had been reproduced were: a Routemaster bus, driving from right to left with Big Ben on the right of the bus, and the riverside facade of the Houses of Parliament. Further, the element of a bright red bus against a black and white background has been reproduced, including the element of the blank white sky, which creates a strong sky line.

Canadian Copyright Law

Under Canadian law, photographs are “artistic works” and are entitled to copyright under the Copyright Act. Generally, there is no infringement of a copyright in a photograph without reproduction of a photograph. An original photograph of a similar object, or even the same object, does not constitute copyright infringement (see decision of the Federal Court in Ulextra Inc. v. Pronto Luce Inc.). However, in Ateliers Tango Argentin Inc. v. Festival d’Espagne et d’Amerique Latine Inc., (1997), 84 C.P.R. (3d) 56, the defendant reproduced a photograph originally taken for the plaintiff for use in its promotional material. The defendant’s photograph was taken at the same location, taken from the same angle, used the same layout of the subject and positioned the four models in the same choreographic positions as the plaintiff’s photograph. The Quebec Superior Court had no difficulty in coming to the conclusion that the defendant intended to and succeeded in imitating the plaintiff’s photograph and therefore had infringed the plaintiff’s copyright.

In this regard, Canadian law is similar to the U.K. law prior to the decision in Temple Island Collections.

Implications

What is troubling about the decision in Temple Island Collections is that this decision blurs the distinction between an idea and an expression of that idea. When one compares the two images, the defendants’ image is clearly not a reproduction of the other. While the images share similar elements, the taking of two photographs of the same scene, especially where that scene is somehow iconic or distinctive, has not previously lead to infringement. In this case, the photographs were further manipulated by computer software by each party.

It is a fundamental principle of copyright law that copyright does not protect an idea, only the expressions of the idea (see University of London Press, Ltd. v. University Tutorial Press, Ltd., [1916] 2 Ch. 601, Designer Guild Limited v. Russell Williams (Textiles) Limited (Trading As Washington Dc) [2000] UKHL 58; [2001] 1 All ER 700; [2000] 1 WLR 2416 (H.L..), see also CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339). This principle holds that if an idea can be expressed in only one or in a very limited number of ways, then copyright of that expression will be refused for it would give the originator of the idea a virtual monopoly on the idea. In such a case, it is said that the expression merges with the idea and thus is not copyrightable: Delrina Corp. v. Triolet Systems Inc., 2002 CanLII 11389 (ON CA).

The Temple Island Collections decision lowers the threshold for suing potential defendants who may have been inspired by an idea to create their own expressions of such an idea.  It will be interesting to see if this decision is followed by other courts, or if it will be restricted to its particulars facts.