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Shut Up Photoshop-Digital alterations and compositions of Photographs protectable by Copyright


By Steve Kuncewicz

February 15, 2012 | 9 min read

IP Lawyers, like all other professionals, are used to hearing certain phrases over and over again - for example: "How do I copyright this?" "If I make five changes, is that enough?" and the undisputed champion of heavyweight client indignation: "But they stole my idea!!". It's at this point that the Lawyer (usually the villain of the piece, occasionally through no fault of their own-they're usually only seen as getting in the way of something or being the bearer of bad news) has to look their client square in the eye and explain one of the most fundamental (and misunderstood) principles of copyright and pretty much all other UK IP law; IP law doesn't protect ideas; it protects how those ideas are expressed. If you really want to keep an idea confidential, write it down before labelling it as "confidential" and asking anyone you want to tell about it to sign an NDA.

So far, so good-there's nothing to stop two different copyright "works" from being inspired by the same idea as long as one doesn't slavishly copy the other: "The Da Vinci Code" was based on very similar themes to "The Holy Blood And The Holy Grail" and despite a very high-profile copyright infringement case which showed that over ten elements of "Holy Blood" made their way into Dan Brown's book, that wasn't enough for its authors and their publishers to win at trial.

It's often said that there are very few original ideas left, at least in the creative world. Ask the older, more cynical members of the public whether or not Jamiroquai would have had a career if not for the influence of Stevie Wonder or whether Oasis would have been as successful without a record collection made up of the Who, the Stones and the Beatles and they'd probably agree.

So, what is it that makes a work of creativity something that can be protected by copyright if not the general idea? The answer's actually fairly simple, and explains the whole point of copyright law-it allows creators to make money out of their creativity; it protects intellectual creation. Two songs can sound very similar, say "Born This Way" and "Express Yourself", without one infringing on the copyright in the other - if the latter only shares a similar melody or chord changes then it can be protected in its own right. What the Court has to decide is whether or not a "substantial part" of the "intellectual creation" in the original has been used without the permission of its author/creator, who is usually the owner of any copyright in it.

So it stayed for a very long time - until late last month, when the goalposts may have been not so much moved but put in separate postcodes by the judgment in the case of Temple Island Collections Limited v New English Teas and John Houghton. Surely such an innocuous-sounding case couldn't redefine the boundaries of copyright law? It remains to be seen, but the answer as of right now is a qualified "yes".

Why should you care? Because in this case, the Court found that the basic idea behind a photograph which had been edited in Photoshop was protectable-a shot of a Red London Routemaster Bus travelling in front of a monochrome background containing the Houses Of Parliament was re-created by the Defendant and shot from a different angle, but was still found to infringe. What this means in practice is that the way in which a photograph is composed by its Photographer and subsequently altered can now be protected by copyright, even if the infringing photograph is a different image.

Copyright Lawyers are very excited and/or disturbed by this judgment. Photographs are protected by copyright under English Law as "artistic works" and photography infringement cases usually involve images that have simply been taken wholesale and used without permission, leading to the award of a fairly low sum in damages to compensate their creator by forcing the defendant to pay what they would have made had the image been used under licence (subject to a small increase for flagrant use) or hand over the profits generated through its use. They can also involve situations where an original image has been altered, provided that the Claimant can show that their original work was copied.

For years, though, Photographers haven't really been able to do a great about a competitor that sets up a similar (not identical) shot and takes their own photo, because the idea behind that shot couldn't usually be protected.

The last case before Temple Island that dealt with the issue involved, ironically enough, Oasis. Creation Records (their label), Noel Gallagher and others sued News Group Newspapers (no, NOT News International) in 1997 after The Sun began selling a poster which featured a photograph of the set of the album cover of "Be Here Now"taken at the same time as the final image, although not the actual photograph used on the cover. If you're one of the many who bought it (and the few that still own it save for use as a coaster) then you may appreciate why-it features a Rolls-Royce emerging from a swimming pool and various members of the band in suitably moody poses surrounded by apparently "symbolic" objects.

Creation and the other claimants argued in this case that the scene and composition of the photograph was a separate copyright work and protectable in its own right. The Judge disagreed, finding that assembling disparate objects together could not be protected by copyright, and reinforcing the theory that two works created from a common source don't always involve the other being copied.

The decision made sense fifteen years ago, and despite the emergence of Photoshop and the rise of airbrushing, it's always seemed to make sense since. However, in the Temple Island case, the Claimant sued when New English Teas asked a design agency to digitally alter photographs taken by one of its directors of a London Bus crossing Westminster abridge with the Houses of Parliament in the background.

You'd think that there wouldn't be a problem in taking a photograph of an admittedly iconic London scene. Normally you'd be right, but in this case the parties had crossed swords before, when New English Teas had previously entered into a licence agreement to use a photograph taken of a very similar scene by one of Temple Island's directors (Mr. Fielder) and then photoshopped to make the Bus seem redder (inspired by Schindler's List) against a monochrome backdrop with the sky removed in favour of a white background. The image became famous in its own right and has since made Temple a significant amount of money through licensed use on souvenirs.

New English tried to get around the problem of copyright infringement by talking four of their own versions of the photograph and combining them, as well as inserting a stock image of a red London bus. According to the Court, they didn't go far enough.Judge Birss ran through the different aspects of photography that could be protected by copyright in his judgment, including the angle of the shot, lighting, exposure and effects, creation of the scene and simply standing in the right place, before coming up with a whole new category-digital manipulation.

Even though Fielder used Photoshop to create the image and despite the fact that New English used a stock photograph of the Bus and pointed to several similar images to the original which were already in the public domain before the Temple Island image was created (although they didn't argue that the image had been "influenced" by them), the fact that they had come into contact with the Temple Island image meant that they had not created their version independently, even if they also drew from other sources-it had guided the creative process behind their version, and New English's image would not have been created if they hadn't seen the original.

Although the second photograph was found to be original and the techniques used to create the first image commonplace, the composition and visual contrasts in the Temple Island image amounted to "intellectual creation". The choices made by photographers lead to different visual effects, and those choices can apparently be protected by copyright on the basis that they are "original". A substantial part of the composition of the original image had been used, so infringement had taken place. Part of what made the composition original was how it had been altered.

It's been argued before and since that is decision or a similar one would give claimants like Temple Island a monopoly in a common image, but that may have missed the point here-that monopoly is limited, but the scope of the application of this case may not be. It's possible that this could lead to a rash of similar claims, and the line between copying an original idea and how that idea is expressed is going to blurred even further. Inspiration is valuable, but here perspiration was priceless.

Photoshopped images may now be protected in the same way as the original photograph,but anodyne and everyday images without any real distinctive elements will be tougher to sue on. That won't stop people from trying however, and the Courts may soon be full of photographers for reasons other than snapping a photo of celebrity claimants. In the meantime, if you're asked to recreate an iconic image, take more care than ever to steer as far away as possible or risk being crushed by the same red bus as New English.


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