Copyright in photographs – The Red Bus case
This case concerns an action for copyright infringement. The Claimant, Temple Island Collections Limited (“Temple”) claimed copyright in a primarily black and white photograph of a London bus (emphasised in red) travelling across Westminster Bridge in front of the Houses of Parliament. The photograph is used by Temple on souvenirs of London.
The Defendants produced tea, the packaging of which also featured an image consisting of a primarily black and white photograph of a London bus (again emphasised in red) travelling across Westminster Bridge in front of the Houses of Parliaments. The Claimant alleged that the Defendants’ use of this image infringed the copyright in its photograph.
Pertinent to the case was the fact that the parties had already settled an earlier action for infringement of the copyright subsisting in the Claimant’s image. The Defendants subsequently sought to create an image that would not infringe the Claimant’s copyright and it is this second image that was the subject of the current action.
Both images were based upon photographs taken by each party, which were then manipulated using computer software, altering the composition and colour of the images.
Section 1(1)(a) Copyright Designs and Patents Act 1988 provides that copyright subsists in original artistic works which, by virtue of Section 4(1)(a), includes photographs. The decision contains an interesting examination of the scope of photographic copyright where the subject of that photograph is a well-known object, such as a landmark building and considers the room for originality residing in:
(1) Specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques.
(2) The creation of the scene to be photographed.
(3) Room for originality deriving from being in the right place at the right time.
The Claimant alleged that the Defendants’ image reproduced a substantial part of his work. The Defendants denied the claim, arguing that the copyright subsisting in the Claimant’s image did not provide a monopoly in black and white images of the Houses of Parliament also incorporating a London bus.
Following the judgement of the CJEU in the Infopaq International A/S case v. Danske Dagblades Forening (C-5/08  FSR20) Judge Birss confirmed that copyright may subsist in a photograph if it is the author’s own intellectual creation. Judge Birss held that the composition (including manipulation using computer software of a photograph) is capable of being a source of originality and the product of skill and labour of a photographer, giving rise to copyright. The Claimant’s image was original, being the result of its owner’s own intellectual creation and the fact that it consists of landmark buildings and the iconic London bus, does not mean that the work is not an original work in which copyright subsists.
He then moved to an examination of what would constitute a “substantial part” of the image in this case (clearly a difficult issue given the subject matter of the photograph) stating “Visual significance must also be relevant to infringement and to the question of whether a substantial part of an artistic work has been taken. What falls to be considered, in order to decide if a substantial part of an artistic work has been reproduced, are elements of the work which have visual significance. What is visually significant in an artistic work is not the skill and labour (or intellectual creative effort) which led up to the work, it is the product of that activity. The fact that the artist may have used commonplace techniques to produce his work is not the issue. What is important is that he or she has used them under the guidance of their own aesthetic sense to create the visual effect in question. Just because the Act provides for copyright in these original artistic works irrespective of their artistic quality (s4(1)(a)), does not mean that one ignores what they look like and focuses only on the work which went into creating them.”
Judge Birss made a detailed examination of the similarities and differences between the two images acknowledging that they differed in their composition but that elements of the overall composition of the Claimant’s image had been reproduced, in particular the element of the bright red bus against a black and white background and the element of the blank white sky. Judge Birss decided that the Defendant’s work did reproduce a substantial part of the Claimant’s artistic work, stating “In the end the issue turns upon a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the Claimant’s work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself.”
A further interesting point to note is that Judge Birss found that the collection of other similar works relied upon by the Defendants worked against them, because the collection served to emphasise how differently ostensibly independent expressions of the same idea actually look.
He also commented that the Defendants’ were of course free to use entirely independent images of the same landmarks and could have instructed an independent photographer to capture an image which included a London bus, Big Ben and the Houses of Parliament. Whatever the resulting image, it could then have been used by the Defendant as the images would have been the result of independent skill and labour employed by the independent photographer.
The full decision can be found at: http://www.bailii.org/ew/cases/EWPCC/2012/1.html