The photographs I take (and sometimes touch up) are meant for personal use, and not for profit, so I normally don’t have to worry about matters of copyright infringement. However, every so often there are developments out there that need to be taken into account. A recent case in England (now known as the Red Bus case) serves to remind us what could happen if you don’t watch out.
Briefly, you don’t have to be ripping off an image to be accused of copyright infringement. You can be found equally liable if your image is substantially similar to someone else’s, as originality can arise from
- specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;
- the creation of the scene to be photographed;
- being in the right place at the right time; and
- any manipulations (whether digital or otherwise) being undertaken after the capture of the image.
As the judge observed in this case:
30. Copyright is infringed by reproducing the whole or a substantial part of a work in a material form (s16 and s17 of the 1988 Act). It was common ground between the parties that a “substantial part” is a matter of quality not quantity…. First one asks whether there has been copying and if so which features have been copied, and then asks whether that represents a substantial part of the original. One does not then ask if the alleged infringement looks on the whole similar, because one can reproduce a substantial part without necessarily producing something that looks similar even though of course it may do so.
The photograph here, besides showing a double-decker Routemaster bus crossing Westminster Bridge with the Houses of Parliament in the background. This is an image that millions of tourists have taken pictures of. However, the claimant was able to successfully claim that copyright subsisted in its image, which was infringed because the defendant’s image copied the following key elements:
- it was a monochrome photograph with the bus highlighted in red;
- it was crossing the bridge from right to left (ie, north to south);
- the sky was a very light grey, and has a large portion of the image;
- the Elizabeth Tower (in which Big Ben is found), together with a large portion of Parliament’s riverside façade, as well as Portcullis House, figure prominently in the background;
- there is no other obvious traffic; and
- the top of the bus is at roughly the same height as Parliament’s façade.
There were differences between the two images, but otherwise the key elements above were plainly the same, thus constituting a substantial part of the picture, and that’s why the applicant won.
Does that mean that any other photograph could infringe? The judge said:
68. I sympathise with Mr Houghton in his wish to use an image of London landmarks. He is free to do so. There are entirely independent images of the same landmarks available to be used which predate publication of Mr Fielder’s picture. But the defendants do not want to use those, no doubt for their own good reasons. Perhaps they did not look as attractive as the claimant’s image? The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe. It may or may not have the same appealing qualities as the claimant’s image. Even if it did they would be the result of independent skill and labour employed by the independent photographer….
Canadian copyright law is quite similar, as noted in s. 3 of the Copyright Act. Just one more thing to be careful about.