I should note that I completely agree with TaoTeJared's statement that this case is much narrower than people are making it! There is merit to this topic thread in that it is good for us to know what is going on.

I am familiar with the Supreme Court ruling regarding the Edward Balkian case. To use someone's image and to photograph a similar subject even in the the same place will not over time hold up as intellectual property. On the other had the courts and attorneys may have a field day with this kind of suit. It does indicate to many photographers to do their own compositions. I for one am not into slavishly copying someone else's style or view. Many of us also study photos and to a degree emulate work we admire. I do not see this as a court matter. But a minor change in angle,etc. can often give a refreshing view and take on a iconic subject. Too bad this subject is fodder for attorneys and the courts. Buyers do peruse advertising and I believe are relatively sophisticated in regards to copycat advertising photos?

SkintBrit said:
As I said in my previous post, I dont understand how the judge could have known who was responsible for the original idea, or first person to come up with that image was. Surely this would have been a pertinent point in his decision?

The photographer took the image and it was made into a postcard in 2005. The video was taken a few years later. There was a clear record of the creation of the images and it didn't sound like anyone contended it.

sevencrossing said:
Normally Logos are protected by registering them as a Trade Mark
It is an interesting to idea to protect them by copyright laws

If you don't trade mark your logo, it is still covered under copyright laws. I have heard it is not as strong in court though.

spraynpray said:
...it seems possible now that copyright can be used for objects in photos. Quite where all this ends is impossible to estimate right now.

They made a point for the France case that French law was unique. It sounded like the pieces were the "subject" of the photos and not used as an accessory. That seemed to be threshold. If you are in France you should be careful but as for the USA that ruling would not happen.

tcole1983 said:
I think the judge was ruling on companies basically using a similar image for their products. So the problem being the one company is making their advertisement look similar to the others label or whatever.

That is exactly it. This is what the defending company (who hired the company who did the work) did:

...To produce the second work, the one with which this case is concerned, Mr Houghton took four photographs. Three were of different aspects of the Houses of Parliament and the fourth was a picture of a red Routemaster bus while it was stationary on the Strand. Of the three, one photograph showed the facade of the Houses of Parliament, one showed Big Ben and one showed part of Big Ben with Portcullis House across the road. Mr Houghton explained how the defendants' work had been produced by Sphere Design. They combined and manipulated Mr Houghton's images as well as an iStockphoto image of a Routemaster bus. The bus was re-sized to fit and the road marks were changed to be consistent.
Thus the original was a photograph, and the second was Photoshop-ed to create the look of the post card. It was not just two photos. The "copied" image was intentionally created to look like the original image.

This case was much narrower than people are making it.

Now that I step back and think about this again. I think the judge was ruling on companies basically using a similar image for their products. So the problem being the one company is making their advertisement look similar to the others label or whatever. Although to me they don't look that similar and I can imagine half of everything in that area have a red double decker bus on them.

At least in the United States I don't think we see much photography used for company logos. The only place I see this being a problem would be in the travel industry such as like Yellowstone or whatever, but even then how many pictures of like old faithful are there??? I have at least a half dozen. I think the key would be how it was really actually used. If you model your ad directly off the other with a very similar picture then I could understand that. On the other hand I don't think it should apply just because a similar technique is used...such as making the background black and white which is a very common one that even I have done. In those cases I think the picture would have to be very exactly replicated to hold any ground of copyright infringement type cases.

Tao, my point was that not only does what you said apply but also (reading the link to the French action) it seems possible now that copyright can be used for objects in photos. Quite where all this ends is impossible to estimate right now.

I saw at least a couple of paintings in the National Gallery which used the pointillism technique - no court cases about that in those days (even though courts existed) because it was not a litigious society on the scale it is now.

Hypothetically, if someone takes a picture of Times Square with a slow shutter, flashing lights and car streaks, can they claim copyright over that image and effectively prevent anyone else from using a similarly composed shot that uses a slow shutter from using that shot commercially?

The way I see it, photoshop really is just a tool like any other tool an artist uses, same as a brush or a camera. If we start placing prohibitions over the use of certain techniques of photoshop then what's there to prevent us from placing the same prohibitions over camera techniques like DoF or slow shutter effects? I think a line needs to be drawn and the way the judge drew it, is very blurry.

Here is another dilemma the arises from the ruling; what about similar paintings? Even paintings that use similar brushing techniques? Would it be possible to apply the same ruling here? Just to clarify, I'm not talking about forgeries here, just paintings that are made about the same subject in the same settings and the same general style; similar but with enough differences to be distinguishably unidentical.

And as far as the other case involving the designer chair... if someone buys a chair, wether from Ikea or a junk heap or an ill-famed designer, wouldn't they own that chair and (at the very least) own the right to produce a photograph of it?

spraynpray said:
I see this as more complex than that.

As I said in my previous post, I dont understand how the judge could have known who was responsible for the original idea, or first person to come up with that image was. Surely this would have been a pertinent point in his decision? The Defendant may well have coppied the work of the plaintif, but how does the plaintif prove that the idea was his? I guess that in this case, it would be for the defendant to show an example of the same or very similar work carried out by onother person before the plaintif produced his? Many people who have left a comment about this subject state that the idea has been around for a very long time. (schlinders list springs to mind).

TaoTeJared said:
What if it was your logo/watermark that represented your work and camera shop opened and used it but making it 3d looking as their logo?

Normally Logos are protected by registering them as a Trade Mark
It is an interesting to idea to protect them by copyright laws

Your example of the chair is not the remotely the same. That is an object used as a prop. The ruling was not focused on the use of the bus, it was on the copying of artistic interpretation of the whole image that included the same technique and similar framing.
Now if you created a video that exactly resembled an advertisement that company used to promote that chair, but were advertising was for home designer's business saying how good their homes where... don't you think you would a letter stating you owed some licensing fees?

Think of it this way - We all know the image of the Afghan Girl by Steve McCurry. If a company re-created that photo, color, eyes etc, but obviously a different person who looked very similar and then created a branding for a product around it - would you believe McCurry would have a right to licencing fees?

What if it was your logo/watermark that represented your work and camera shop opened and used it but making it 3d looking as their logo?

Ideas, images, logos, writing, music, etc. all belong to the person who created it until they sell or sign it away. There was a time when businesses could steal anyone's and other businesses ideas and creations to use as they wanted.

As for the money - those cases are settled in small claims court per UK law due to the nature of the cases. Max 5,000 pounds = around $7,500 us. That wouldn't even pay for the lawyer fees.

I suppose I do not see it as a "litigious nature of the world" but another large corporation seizing a guys success believing it has the requisite to not pay, because a photographer may not have the means.

I see this as more complex than that Tao as your post gives only one perspective - that of protecting photographic work or images.

Say a company creates an original and very special piece of furniture which they market for £250000. They don't sell many as the pieces are so expensive, but the furniture is so desirable that they do sell to those who can afford it and who want exclusivity in everything they buy. I come along and use the piece in a photograph and the photograph sells - say to be used in a magazine with a large circulation.

Now, am I harming the brand because it is perhaps shown somewhere non-exclusive? Am I promoting the brand at no cost to the designer/maker? Am I creating original art which this piece just happens to be used in (as an accessory)? Does the perception blur depending on how sophisticated the image is as well as where it is displayed i.e. whether it enhances or detracts from the image the designer want to create?

I can't see any easy answer to this yet. It is made harder because of the litigious nature of the world that we live in - people see a chance for a quick buck and their thinking ends right there.

Just my 2c.

I originally read this differently and was a bit off on the just of it.
After re-reading this and a couple of articles on it, the more I agree with the judgement.
Quick simplistic summary: (For those who don't want to read all the articles.)
A photographer sells an image to a company who makes post cards. The image becomes "iconic" at tourist shops and became one of the top sellers for years. Then a company created a branding that mimics the post card and used it for a whole line of their products. When given the opportunity to work out a licence fee they declined. The Post card company/photographer wins the case. The key thing to remember is that the image was already being sold, and a company created a branding with the same artistic take.

The judge stated what moved him to the ruling was that the photographer took an image and applied "his artistic take on it" and that exact same artistic application along with the same subject matter, created the infringement.

"In an interview with Amateur Photographer (AP) on 26 January, Fielder said that his Photoshop manipulation of the image played a 'key part' in the copyright victory: 'It was the artistic element that got us over the line... That made it more original than just taking a photo.'"

So basically the judge ruled in favor of the original photographer for his unique image when a company refused to pay a licencing fee for using his "artistic take" on an image that they applied to their brand. Photographer wins - company who gave him the finger and didn't want to pay for his artistic talent now has to pay.

Not sure about the rest on here but I see that as a win for photographers and protecting their rights to their own creations.

sevencrossing said:
In some cases yes, generally not in the UK, possibly in France. I will try and the link. It is reported in the BJP

http://www.bjp-online.com/british-journal-of-photography/news/2140613/getty-images-fights-copyright-infringement-ruling-french-court

Oh geez I wasn't even trying to be serious there! That's pretty ridiculous. Though it really reads like the claimants are snooty jerks (going off what the lawyer's saying, and it having to do with luxury designer we're-better-than-you-because-we-can-pay-a-basszillion-for-this furniture) and the lawyer's going for anything he can continue making dollars on. I mean I COULD see if someone was taking straight reproductive images of a flat piece of a painting or drawing or something and reselling that as prints or something. But a photo that has "even a fraction of" some object in it being considered infringement? Ludicrous!

The entire idea of copyright in this context is getting out of hand.

El_Pickerel said:
So can the architect that designed Big Ben or the other mentioned structures sue the claimant? How about whatever engineer / concept artist designed the red double-decker buses?

In some cases yes, generally not in the UK, possibly in France. I will try and the link. It is reported in the BJP

http://www.bjp-online.com/british-journal-of-photography/news/2140613/getty-images-fights-copyright-infringement-ruling-french-court

So can the architect that designed Big Ben or the other mentioned structures sue the claimant? How about whatever engineer / concept artist designed the red double-decker buses? Surely the claimant was inspired to take the photo because he was inspired by what must surely be their intellectual properties?

If copying or drawing inspiration for ones work from an others is now supposed to be illegal, most photographic magazines had better stop publishing. You know the ones.....they come with a CD stuck to the front with the images or tools necessary to complete the project discussed in the magazines editorial. They are ACTIVELY INCOURAGING duplication of work and learning from an others. With the risk of being sued buy you guys, I admit to being inspired by your photo a day pictures, and have a desire to replicate them myself! ......Oh that's done it, I suppose I'd better start looking for a lawer now?

You regularly hear of the great painting masters "drawing inspiration" from another painter, does this mean Picaso's estate can now sue Constables?

Ridiculous... I wonder when someone's going to do something against things like this. Intellectual property my ass, its not even the same viewpoint and the composition seems very different to me.

Obviously a case for Lizbeth Salandar.... she can get into the judge's email and find out he is really a voyeur on red buses and this was just too much for him to take.

Reversed on appeal...

An error in law: This is what appeals courts are made for.

TaoTeJared said:
It seemed weekly where a company was suing someone who using a similar Brand image and the plaintiff seemed to win the suit almost every time.

Fair enough, but how many of those brand images were of iconic landmarks? I suppose Mickey Mouse and Monroe could also be deemed as iconic "landmarks" too but they were always brands right from the beginning.

SkintBrit said:
The thought that came to my mind is how does the 'original' photographer prove that he was the very first person to take or manipulate his image?

Exactly! He doesn't. In fact, it was mentioned in the judgement that the defendant presented various other photos showing similar scenes in black and white with and a highlighted red double-decker bus. The defendant was arguing that these other photos were the actual source of inspiration for his own image and not the claimant's image. But then the judge goes on to say that even though one of those images was unquestionably dated to a time before the claimant's image, it is unclear if the background was truly black and white or if it was "just a typical grey London street scene and sky." Btw, this is mentioned in paragraph 49(iv) in the judgement. Furthermore, because the claimant says he's never seen any of those images before he created his own, the judge says that he believes him and so the judge finds that he was not influenced by other work (p47).

Here is a link to the judgement if anyone is interested in reading it:

http://www.bailii.org/ew/cases/EWPCC/2012/1.html

I didn't read it all but some parts of it were very interesting. P42 - 50 talk about all the other similar works. P10 is interesting to read too.

IMHO the original photographer should no longer be accepted by the photographer community. You don't do stuff like this in public, not to mention to go to court. As for the judge... no comments... for me it's like ACTA.

The thought that came to my mind is how does the 'original' photographer prove that he was the very first person to take or manipulate his image? Surely someone else could come forward and sue the plaintiff for copying THEIR work? How many thousands of almost identical images of most of the world landmarks must there be?

That is a hard one not knowing the brand of Tea. Maybe some UK residents can chime in to say if seeing the "copied" image that invokes the image of that brand.

I have read a few cases like that when the images really DO NOT have an obvious artistic interpretation (think of Andy Warhol screen prints of Monroe photos or Mickey Mouse being obvious) most judges have ruled it being infringement. The short stint I spent working around advertising I heard of similar suits all the time, especially with long held "Brand Images." It seemed weekly where a company was suing someone who using a similar Brand image and the plaintiff seemed to win the suit almost every time. Now when it was someone copying a brand image to make a parody of it, those got thrown out most of the time.

So we end up where most photos look like some other photo somewhere so there will be copyright infringements everywhere.

This is a bucketful of B.S.

donaldejose said:
I am a lawyer

No way! I call shenanigans! You made sense and did not charge anything. No way you are a lawyer!

We are talking about the UK here. So this does not surprise me in the least. TEA is serious business!