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United Kingdom News

Non-Copied Photo Is Ruled Copyright Infringement 657

Posted by samzenpus
from the close-enough dept.
An anonymous reader writes "A UK judge ruled that a photograph inspired by another photograph, but clearly different from it, infringes the original photo's copyright. The two photographs were shot in the same location, have the same subject, and use the same distinctive post-processing treatment. However, the angle and composition are different. From the article: '[The judge] said a difficult decision hinged on a "qualitative assessment of the reproduced elements." He defined Fielder's image a "photographic work," as distinct from a simply a photograph, in that "its appearance is the product of deliberate choices and also deliberate manipulations by the author," and concluded that those aspects had been copied.'"
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Non-Copied Photo Is Ruled Copyright Infringement

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  • by Overly Critical Guy (663429) on Thursday January 26, 2012 @12:24AM (#38825631)

    You know, having read the judge's reasoning, the headline and summary for this story are somewhat misleading. Yes, the photograph is "clearly different" in that it's not the exact same photograph, but it is clearly the same compositional idea, with the only practical difference between a difference in angle. Also, the second photo was intentionally made to avoid licensing fees from using the original.

    The judge offered his logic behind the decision:

    The judge concluded that the claimant (Justin Fielder)'s image is original and that the intellectual creation resided both in the compositional elements of the image and the contrast aspects. Specifically, Judge Birss QC highlighted two visual contrasts: 'one between the bright red bus and the monochrome background, and the other between the blank white sky and the rest of the photograph.'

    He also took into account the evidence that Mr Houghton was aware of Mr Fielder's image (the two had previously been to court when they had failed to reach a licensing agreement over Houghton's previous infringement of Fielder's copyright), to conclude the similarities were causally related.

    In the end, Birss said a difficult decision hinged on a 'qualitative assessment of the reproduced elements.' He defined Fielder's image a 'photographic work,' as distinct from a simply a photograph, in that 'its appearance is the product of deliberate choices and also deliberate manipulations by the author,' and concluded that those aspects had been copied.

    In other words, the original wasn't simply a photograph of something but a specifically processed piece of artwork, and the second piece attempts the exact same style and processing. The defendant commercially used the original without licensing it from the plaintiff and was sued by his company, and the second photo was only taken afterward to avoid paying the licensing fee, so the intent of the photo was specifically to copy the original and not borne of parallel-developed artistic expression.

    So to say it's a "non-copied photo" is, in my opinion, wrong.

    Howeverthe comments to the article also point out that this kind of shot is common: example [framingdoctor.com.au], example [ukbestguide.com], and example [popartuk.com] (note that these pictures have no dates provided). The article says alternative examples were in fact brought up in court, but the judge said they worked against the defense because they "served to emphasize how different ostensibly independent expressions of the same idea actually look." But I think they're all a close enough idea that the differences in angle and position don't serve to make them different enough, because the core idea of all the pictures is this specific London red bus in front of a monochrome Big Ben scene.

    If it can be proved that there existed images like this before 2006, then the plaintiff shouldn't have won, but apparently, the examples given in court were undated.

    • by Anonymous Coward on Thursday January 26, 2012 @12:42AM (#38825725)
      Ideas aren't and shouldn't be protected by copyright. This is a dangerous, if unsurprising, precendent. Big copyright is succesful in their quest to limit creation and people like you will be cheering them on right up until your cheering is ruled to infringe on something or another.
      • Re: (Score:3, Insightful)

        by Anonymous Coward

        "Ideas aren't and shouldn't be protected by copyright. This is a dangerous, if unsurprising, precendent."

        The idea isn't. The point is that a derivative work is when you look at someone's work and make a similar one that you would not have produced without first viewing the original (at least in the US). If you are a derivative work, then you can be subject to copyright infringement. This has always been the case.

        Consider Snoopy. If I look at the snoopy character and draw a similar dog called Smarpy, whi

        • by Anonymous Coward on Thursday January 26, 2012 @01:37AM (#38825961)

          Apples and oranges. As pointed out below by someone else, photos are barely copyright-able at all, because they're simply a recording of something. Your example of Snoopy is something entirely different. Furthermore, even in derivative works fair use generally applies, meaning it's still OK.. The main reason you can't reproduce things like Snoopy is because they're trademarked.

          • by hedwards (940851) on Thursday January 26, 2012 @02:38AM (#38826181)

            I see so you're an expert in art? I've studied photography pretty seriously for years, and I can tell you that there's a lot more that goes on than just capturing what you see. Seeing it is a talent that requires a lot of study, but most photographers, even most nature photographers and some photojournalists, stage the photos. Just because the medium requires a click at the end does not suggest that any less work went into the photo than a comparable painting.

            The truly talented can end up going months between inception and creation.

            Then again, you're a troll, so who gives a damn what you think.

            • by repapetilto (1219852) on Thursday January 26, 2012 @04:07AM (#38826503)

              You would do it anyway because you enjoy it. If not you, someone like you but retired could probably figure out the same thing. To me, at least, the correct argument is that copycats profiting off your work that you shared freely is bs.

              If you wouldn't do it out of enjoyment, it probably sucks compared to what the guy who did it for himself would do. You should want people to copy your art, if not you are doing it wrong.

              • by tehcyder (746570) on Thursday January 26, 2012 @11:46AM (#38829951) Journal

                To me, at least, the correct argument is that copycats profiting off your work that you shared freely is bs.

                Why? If you think everyone shold just share everything freely, how can you stop someone from using that to make money? That's right, you'd have to have copyright laws of some description.

                Just because the US has decided to allow Mickey Fucking Mouse to be copyrighted until the eventual heat death of the universe doesn't mean that the whole idea of copyright is wrong.

            • by TheLink (130905) on Thursday January 26, 2012 @10:32AM (#38828933) Journal
              Just because it takes lot of work and effort does not mean you deserve a _monopoly_ on the _concept_.

              A bricklayer spends lots of time putting bricks on bricks to build a house, that should not give the bricklayer the right to prevent others from building a house by putting bricks on bricks. Even if it's a house with the same colour scheme (but different shape).

              So what is covered? Does this ruling mean that any picture with "coloured iconic object in monochrome background" is now infringing?

              I'm not photographer, but it seems silly for any photographers to be happy about this ruling. In my unlearned opinion what this ruling means is that just taking a picture of a famous monument that's been processed in some (not too trivial?) way would be infringing on any previous similar photos. You really sure you want that? You might not be able to do much non-infringing professional or "value-add" photography, or maybe if the judges get more insane, you might not be able to do much noninfringing photography of popular objects/sites.

              The main difficulty is not ideas and concepts, the difficulty is coming up with a high quality result from the original idea. So giving a person a monopoly on a concept seems ridiculous. I can have plenty of ideas on photography - that does not mean I can produce a good "photo".

              In fact to me the two photos are very different other than the colour schemes: one has sky, skyline, stairs, bridge and river. The other is sky, famous building, the bus on a long road and the bus is "smack in the front". As a result In the latter the bus is more prominent, more of a main subject, whereas the former, the bus is a highlighted object but in a more varied background.
          • by Darinbob (1142669) on Thursday January 26, 2012 @03:17AM (#38826331)

            This original photo in question is not just a recording of something. Have a look at it. It's been greatly modified from what the camera actually recorded.

          • Re: (Score:3, Insightful)

            by asc99c (938635)

            If you read TFA (which admittedly, also very nearly misses the point) you'll see the point is this photo isn't just a recording of something. There are certain aspects of it chosen by the artist - the white sky, the monochrome background, the red bus - which therefore can be copyrighted. And furthermore, the defendant had photographed the second image especially to avoid having to pay a licence for the original image.

            While the second image isn't copied either digitally or by photocopier, it is still a cop

        • by Anonymous Coward on Thursday January 26, 2012 @01:52AM (#38826019)

          This has always been the case.

          No it hasn't. All i have to say from your comment is that you know absolutely zero about the human creative process. The Beatles mimicked elvis and the crickets. Mickey Mouse is a derivative of Oswald the Lucky Rabbit (with slightly different ears) and from vaudeville and minstrel shows before that. Take any creative work of value-- anything-- music, literature, movies, paintings-- and I can guarantee you it was influenced by an earlier artist whose formative efforts involved watching and learning from whatever came before.

          Every creative work, much like scientific advancements, stands on the shoulders of and is influenced by its predecessors. Culture doesn't self-generate spontaneously-- and when it comes to copyright, is the EXPRESSION of the idea in a fixed medium that counts, not the idea in and of itself.

          That this work should be found to violate copyright, is in my opinion, nuts.

          • by dadioflex (854298) on Thursday January 26, 2012 @03:25AM (#38826361)
            "Culture" is being removed as an expression of natural human interaction with the ideas around them and being replaced with something manufactured and protected by corporations. Less "culture" and more "cultured", the way you do with slime in a petri dish.

            Also, Heathcliff/Garfield.
          • by madprof (4723) on Thursday January 26, 2012 @03:44AM (#38826439)

            This is a bit like music, in that I can write a tune that has a similar melody to someone else using totally different instruments and if it is too similar the original composer can sue me and claim royalty payments. This has been the case for years.

            The Beatles are a great example in fact. The music and lyrics to Come Together? Partly ripped off from Chuck Berry. They settled out of court in the end but there was a lawsuit. They allegedly even tried to slow it down to make it more original.

            This is not a new idea in copyright of artistic works I am afraid.

            • by Jafafa Hots (580169) on Thursday January 26, 2012 @04:35AM (#38826581) Homepage Journal

              It actually IS a relatively new idea.
              I mean, it is a bit over 100 years old which may SEEM old, but it's a newborn compared to the system it replaced.

              The system that IP law replaced, which gave us all art, all music, all culture, all language, all technology right down to bows and arrows and rock hammers and agriculture and the loin cloth - everything that got us out of caves and which separates us from the other great apes, is over 100,000 years old.

              This new upstart idea, Intellectual Property is replacing the time-tested and seemingly obvious concept (you can't "own" an idea) that has proven over 1000 centuries to enrich everyone and essentially create what we consider to be "humanity," with a virtually untested (results are mixed so far) system that promises to enrich... well, a tiny fraction of a percent.

              I mean, I KNOW it may sound like a great idea - replace the system that gradually dramatically increased the quality of life of most of the billions of humans who have ever lived with one that exploits billions of humans for the enrichment of a few... but oddly enough although the new system has worked as advertised and created a few multibillionaires and hundreds of millions of exploited people, the overall satisfaction rate is plummeting.

              Seems oddly counterintuitive, I know. I mean, who WOULDN'T want to work long abusive hours locked into a factory for pennies until you are driven to suicide so you can make some other guy rich?

              How is that not a great deal?
              There's even the possibility that if you save for a few years before jumping off the factory roof, you might be able save up enough to buy a used, outdated version of the product you've personally made tens of thousands of!

              • by Ihmhi (1206036) <i_have_mental_health_issues@yahoo.com> on Thursday January 26, 2012 @06:19AM (#38826979)

                And amazingly, we seem to be returning to the patronage model.

                Unless you were an artisan (potter, blacksmith, etc.) the masses couldn't really afford things like paintings or sculptures. The royalty, wealthy, and churches ended up paying these men and women for their services.

                Nowadays, we have a similar situation where people are acting as artists and performers and leaving out a digital chip jar. Now the whole world are the patrons. The model has been very successful if you have a quality enough product - just look at all the webcomics where people live 100% off of the donations they receive, or the ones who segue into merchandising.

                • by Hatta (162192)

                  Before too long, there won't be any choice but patronage. Increasing wealth inequality will leave the lower class with nothing to spend on entertainment.

              • You might also want to consider the amount of technological progress that has taken place over the last 100 years and compare it to the last 100,000 years.

                I'm not saying the system is perfect, or even that its current manifestation serves the public particularly well. But you can't simply disregard the entire concept of Intellectual Property and pretend that it hasn't encouraged (and rewarded) innovation.

              • It actually IS a relatively new idea. I mean, it is a bit over 100 years old which may SEEM old, but it's a newborn compared to the system it replaced.

                Actually it's a bit over 300 years old, the earliest copyright law that comes to mind is the British Statute of Anne 1709.

                The system that IP law replaced, which gave us all art, all music, all culture, all language, all technology right down to bows and arrows and rock hammers and agriculture and the loin cloth - everything that got us out of caves and which

                • by LurkerXXX (667952)

                  Aristotle and Plato purchased books.

                  Of course Aristotle and Plato purchased books. Because some scribe had to spend a long time laboriously copying the original. They couldn't just download a copy off the net.

                  Did the original author get a cut of their purchase price? That's an entirely different question which would be relevent to the discussion, but which you don't know the answer to.

                • >> It actually IS a relatively new idea. I mean, it is a bit over 100 years old which may SEEM old, but it's a newborn compared to the system it replaced.
                  > Actually it's a bit over 300 years old, the earliest copyright law that comes to mind is the British Statute of Anne 1709.

                  And people seem to forget it was PUBLISHERS that were the driving force behind copyright because they didn't want other _publishers_ from selling public works !

                  Copyright, originally, was _never_ about stopping other autho

            • by rollingcalf (605357) on Thursday January 26, 2012 @07:54AM (#38827353)

              Copyrighted music is different because you're actually creating an original sequence of sound, whereas with photography of public domain objects you're capturing something that's already there.

              If you're going to mention music, a better analogy would be recording something musical that is already in nature, like the mating calls of birds. Somebody else going into the same forest to record the same birds shouldn't have to be blocked by copyright just because somebody else was there to record it first.

          • by Anonymous Coward on Thursday January 26, 2012 @04:19AM (#38826541)

            Star Wars is BSG. (Seriously, tell me Rebel technology is not based off the Viper.) Lord of the Rings is the Norse Eddas. Babylon 5 is Lord of the Rings in space with giant energy squids instead of wizards. Star Trek is every Western ever created, in space. Firefly is Cowboy Bebop. Slashdot is Usenet with moderation. Google is Yahoo is Alta Vista. KDE is Windows. Windows is Apple. Apple is that thing what was from Xerox. Linux is Unix. AMD is Intel. C++ is C after a pipe of crack. PHP is Perl/Apache::ASP.

            Copyright Infringement is NOT piracy; piracy is laying alongside Chris Dodd's yacht at pistol shot, thumping in three brisk broadsides and boarding in the smoke.

        • by Anonymous Coward on Thursday January 26, 2012 @02:23AM (#38826121)

          The point is that a derivative work is when you look at someone's work and make a similar one that you would not have produced without first viewing the original

          Congratulations. You just abolished every form of art because every single artist in history did this at least in the beginning when he was still learning. Sorry, no more new artists. Got to protect corporate profits.

          • Re: (Score:3, Insightful)

            Strawman argument. You can copy an artwork, you just can't make a profit from copying if the original is still in copyright without the owners permission.
        • by reub2000 (705806) on Thursday January 26, 2012 @02:59AM (#38826247)

          A derivative work is taking something and changing it, like translating it into a different lanugage or creating an abridged version. Taking ideas, and creating something that is stylisticlly similar is called art. All of the impressionists saw what monet could do with a few tubes of paint and what looked like sloppy brush strokes and created similar work. The heavy metal bands listed to steppenwolf singing about "heavy metal thunder" with loud and distorted guitars, and thought they could make something even louder. Such is art.

          Besides making a photograph mostly black and white except for a single object isn't exactly creative. The idea goes back to the days of the daguerreotype when peoples faces where hand tinted.

        • by sjames (1099) on Thursday January 26, 2012 @03:16AM (#38826317) Homepage

          So, you advocate that we stamp out Newton's standing on the shoulders of giants nonsense? It's gonna be a very boring and unproductive century at this rate.

        • by 1u3hr (530656) on Thursday January 26, 2012 @03:59AM (#38826475)

          The idea isn't. The point is that a derivative work is when you look at someone's work and make a similar one that you would not have produced without first viewing the original (at least in the US). If you are a derivative work, then you can be subject to copyright infringement. This has always been the case.

          Bullshit. Look for instance at TV shows: How many CSI-clones are thers? How many "supernatural detective"? How many Twilightish vampires? How many have been sued for copyright infringement?

          How many old SF books, stories and movies did Star Wars rip off? But lack of originality isn't infringement. Frank Herbert didn't copyright "Mystical warriors on desert planets" with Dune.

          This red bus on the bridge is clearly inspired by the original. But the "original" didn't invent the concept either. Whole moves have been made in that style (Pleasantville, eg).

          • Nice recall on Pleasantville - I liked that movie. Earlier in the thread I also noted the TV series John Doe.

            But I like your other point even more. It's becoming like a small town ticket-revenue cop hanging out instead of fighting/solving crimes. "Oh, the 5th guy to use a technique is infringing the copyright of the fourth guy to use the technique". Persons/Corps #1-3, where do they factor in?

            So what this decision does is not only do we get "pure copyright" issues, we also get the situation where no/fewer a

        • Consider Snoopy. If I look at the snoopy character and draw a similar dog called Smarpy, which isn't quite the same, and perhaps make him a comic book character, is that a derivative work?

          How about if you animate it and call the dog Brian?

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        Yup. Even though what Overly Critical Guy says is quite correct in technical point, the fact is that there IS an absolute line in the sand and this decision crosses it. Its time to start scaling copyright right back to zero, its time has obviously long passed.

      • Re: (Score:3, Insightful)

        I'm not "cheering" anything. I'm saying that the photograph is clearly copied from the other on an artwork level--that being the artistic expression comprised of the subject matter, processing, and overall "tone". It's also a matter of fact that it was specifically intended to be a copy of the original.

        I mean, if you saw a movie called "Triassic Park" with a logo using the same font as the original and a different angle for the T-rex silhouette, and the same storyline but with different actors and slightly

        • by hedwards (940851) on Thursday January 26, 2012 @02:41AM (#38826187)

          It's not clearly copied. The only things about it that are in common are the general location and the subject. Everything about it is incredibly unoriginal. Selective coloring is kind of cool, but it's not really justification for granting protection. Neither is cutting away the sky. Sure, it was kind of a dickhead move creating an image that he knew might be confused for somebody elses work, but the two images shouldn't be considered the same for copyright images.

          Of course this is the UK and it's somewhat different over there.

        • by Golden_Rider (137548) on Thursday January 26, 2012 @02:45AM (#38826199)

          I'm not "cheering" anything. I'm saying that the photograph is clearly copied from the other on an artwork level--that being the artistic expression comprised of the subject matter, processing, and overall "tone". It's also a matter of fact that it was specifically intended to be a copy of the original.

          I mean, if you saw a movie called "Triassic Park" with a logo using the same font as the original and a different angle for the T-rex silhouette, and the same storyline but with different actors and slightly different shots, and a soundtrack that resembled the original but for a few changed notes, you'd still consider it a rip-off of Jurassic Park. At some level, it's just common sense.

          It looks similar, but the point is that it is not clearly copied from that particular photograph. Do a google image search for "bus big ben", and you will see HUNDREDS of photographs which look similar. So I do not know why anybody here should be able to copyright the "look" of these photographs...

          • by IrrepressibleMonkey (1045046) on Thursday January 26, 2012 @04:44AM (#38826613)

            It looks similar, but the point is that it is not clearly copied from that particular photograph.

            You didn't read TFA, did you? The Judge was able to determine that the image was clearly copied from that particular photograph precisely because that particular photograph was being used by the defendant without permission until a court ordered him to pay licensing fees. Only then was the new photograph was created.
            Group think on Slashdot is reaching new levels of stupidity. This isn't a case of artistic freedom, this is about using someone else's art to sell tea and refusing to recognise their efforts.

            • See, does copyright law really specify the intent of the person who violates the copyright?

              Are you really claiming that this is important? If I saw the same photo and merely thought to myself "cool idea, i should try it" and came up with the same thing... that this is somehow different?

              I'm really angry about you calling this groupthink. I don't fucking care what the OP or the GP or whoever said... I THINK that it is BS. I don't frankly care what YOU THINK.

            • So why stop them from using the NEW photograph? Fine them for 200% of the income they made selling the ORIGINAL photo, but the new one is something they made themselves.

            • by metacell (523607)

              You didn't read TFA, did you? The Judge was able to determine that the image was clearly copied from that particular photograph precisely because that particular photograph was being used by the defendant without permission until a court ordered him to pay licensing fees. Only then was the new photograph was created.
              Group think on Slashdot is reaching new levels of stupidity. This isn't a case of artistic freedom, this is about using someone else's art to sell tea and refusing to recognise their efforts.

              But the defendant's intention shouldn't make any difference. It should be obvious *from the photographs themselves* that they're derived from each other.

              The law isn't there to force people to pay licensing fees. It's perfectly legitimate to avoid licensing fees by making your own photograph of the same subject. The law is only supposed to stop photographs which are so similar, they must be directly derived from each other.

      • by Darinbob (1142669) on Thursday January 26, 2012 @03:14AM (#38826305)

        But then you can't copyright books; books are just ideas that are written down. Books and music and plays are expressions of ideas. So photographs are also expressions of ideas.

        If you duplicate a painting by being extremely close to it as much as possible, in oil instead of latex, isn't that violating copyright? These two photographs are much the same, the second is clearly trying to copy the fundamentals of the original. The original photograph is not just a composed photo of a natural scene, it's been processed specially (red bus as only color in black and white photo).

        • by silentcoder (1241496) on Thursday January 26, 2012 @06:03AM (#38826917) Homepage

          >But then you can't copyright books; books are just ideas that are written down

          Bullshit, a book is an EXPRESSION of an idea. What you can't copyright is somebody writing a book with a similar plot and characters.
          Or do you think every vampire book after Bram Stoker's Dracula violates copyright ? As much as I'm in favor of banning Twilight -that is NOT the way to do it.

          >If you duplicate a painting by being extremely close to it as much as possible, in oil instead of latex, isn't that violating copyright?

          No, it isn't. In fact it's a required practice in artschool to learn to paint "like the masters" in this manner. Of course if you then claim your version IS the original you are guilty of a crime and that crime has nothing to do with copyright, that crime is "fraud".

          >These two photographs are much the same, the second is clearly trying to copy the fundamentals of the original

          So what ? Every photographer looks at his favorite photographers and try to reproduce their fundamentals, it's how we learn. The the better ones take what they learned, mix it in with other lessons from other masters and some of their own ideas and come up with something unique. Most of them would love nothing more than to think that some day, some other young photographer will study their photos and try to replicate their techniques. So common is this that some of the more well-known processing styles of famous photographers are built into image processing programs like Gimp and Photoshop so that photographers can see how their pictures would have looked with the same effects applied (or even use them with those effects).
          The style of "one item in color" is not original in the least, it's a fundamental archetype in photography. One of the basic styles every photographer learns early on because it's so powerful. I've used it for portraiture years ago, and I never had any illusions that the idea was original - but I could try to be original in my expression of it. In fact the book "Gimp for photographers" includes a chapter teaching exactly this technique as the author considers it a vital skill every photographer OUGHT to have !

    • by mark-t (151149) <markt@@@lynx...bc...ca> on Thursday January 26, 2012 @12:43AM (#38825729) Journal

      Except for one key fact...

      You cannot copyright an idea.

      That is utterly incontrovertible. And so yes... he copied something. He copied the idea. But that is *ALL* that he copied. The original photographer does not own a copyright on that idea, he owns a copyright on the photo.

      The second photographer did not copy the original photographer's photo. He copied the *IDEA* that the original photographer had.

      • by Dahamma (304068)

        And since it's estimated that less than 10% of any ideas are original, according to this judge 90% of the population is guilty of copyright infringement!

        (and I made up the entire statement above without any reasonable proof or evidence, but I'm sure someone has thought it before so don't blame me, I'm just quoting someone else's idea...)

    • WHERE DOES IT END! (Score:5, Insightful)

      by Frosty Piss (770223) * on Thursday January 26, 2012 @12:44AM (#38825737)

      So what you are saying, OCG, is that attempting to avoid a licencing fee by using a similar but different piece of "intellectual property" should be illegal?

      Apple Computer agrees with you. As you know, they own flat glassy tablets with rounded corners. Don't try to avoid patent licencing by making similar but different tablets...

      • by snowgirl (978879)

        So what you are saying, OCG, is that attempting to avoid a licencing fee by using a similar but different piece of "intellectual property" should be illegal?

        Apple Computer agrees with you. As you know, they own flat glassy tablets with rounded corners. Don't try to avoid patent licencing by making similar but different tablets...

        ... "patents" are different from "copyrights". Yes, they are both intellectual property, and yes they both have problems. However, in the case of patents, you are allowed in no way to reimplement something in order to avoid licensing fees. With copyright, as long as you had no access to the original material, you are allowed to reimplement an idea.

        It's kind of already well-known in the F/OSS world that if you should separate your reverse engineering work from the reimplementation work, where the reimplement

    • by CrystalFalcon (233559) * on Thursday January 26, 2012 @12:53AM (#38825775) Homepage

      It's not misleading in the slightest to call it non-copied for the simple reason that it was not a copy, and that the copyright monopoly only covers direct copies, nothing else.

      Yes, they used similar inspiration and similar techniques. But that is specifically not covered by the copyright monopoly, which has always been about protecting a specific expression of a creative idea, and never the idea itself.

      For more, see this article on Falkvinge on Infopolicy [falkvinge.net].

      • by Epimer (1337967) on Thursday January 26, 2012 @02:37AM (#38826175)
        There is significant precedent in UK law that if one takes a "significant portion" of the original work then it constitutes copyright infringement. This provision exists to prevent someone from circumventing infringement by making trivial differences and then claim they haven't directly copied a work. This case absolutely does not extend to the protection of an idea. For copyright infringement to be found, one must demonstrate a causative link between the original work and the alleged infringing work; hence, independent creation of (in this case) a photograph wherein it can be demonstrated that the defendant was unaware of the original work is not an infringing act. Those are not the circumstances of this case. The defendant was aware of the claimant's work; in fact, there had been a licensing disagreement concerning exactly that work which was claimed to be infringed. The relevant case law for this type of thing is Bauman v Fussell, Krisarts v Briarfine, and for the "intellectual creation" reasoning (brought in to harmonize with existing EU law and somewhat overriding the previous "skill, labour and judgment" basis which used to be UK law), see the Infopaq cases.
    • by polymeris (902231) on Thursday January 26, 2012 @01:00AM (#38825795)

      Also, the second photo was intentionally made to avoid licensing fees from using the original.

      original, you say? [google.com]

    • by martin-boundary (547041) on Thursday January 26, 2012 @01:02AM (#38825807)
      The judge is an idiot, or maybe he doesn't go much to the movies. The compositional idea isn't original at all. girl in the red coat [wikipedia.org]
    • by SuperKendall (25149) on Thursday January 26, 2012 @01:10AM (#38825841)

      I think to say the sky/building contrast was a choice is wrong; That's simply a byproduct of B&W conversion in a place that has uniformly grey skies a lot of the time. Perhaps if the artist had done extra work to get the sky that color but having done some B&W conversions I very much doubt that is the case.

      The one actually coped element is simply the treatment of the red bus in color contrasting with everything else. But that practice was in use well before 2006.

      The rest of the work compositionally speaking, is totally different - the relation of the bus to the buildings, even the relation of people to the bus or the use of people within the image is totally different.

      I guess he just had a really inept defense because this judgment should not have ended up this way based on that image.

      • by snowgirl (978879) on Thursday January 26, 2012 @02:28AM (#38826141) Journal

        I guess he just had a really inept defense because this judgment should not have ended up this way based on that image.

        There is also the special case that he redid the photo just to avoid a licensing lawsuit...

        It's the worst example of how not to do reverse engineering: infringe someone else's copyrights at first, then when you're called out on it, go out and reverse engineer and reimplement without a clean box...

        It is highly unlikely that the defendant ever would have been in trouble, if he had not previously infringed fully on the copyright, by reproducing the original without permission.

    • by erroneus (253617) on Thursday January 26, 2012 @01:46AM (#38825999) Homepage

      Actually, according to the summary, the composition was different as was the angle. It was the subject and the 'style' which were the same.

      This is an extremely slippery slope where the arts are concerned. EVERY bit of art owes style, composition and subject matter to other, previous works by other people. This judge has essentially ruled that by copying someone's style and using the same subject, they have copied the work of another. That's a bit problem. It's like "patenting" art.

      In order to improve our own art, at times we seek to duplicate the styles of other art we enjoy. As a former art student, I know very well about the application of style in classical arts such as sculpture, painting and sketching. I also know very well about the digital arts where styles and methods used in creating manipulating graphics are often borrowed, simulated and quite often duplicated by simply using the same photoshop filters.

      We have had discussions about photography and objects on public display before. It's simply ridiculous to say that images of such objects fall under copyright. And in this case, the use of color on an object while not having color on all other things has been going on for a VERY long time. This technique, I believe was likely born of marketing and advertising drives, is far from new and far from being "ownable" by anyone in particular. The technique is fairly common and fairly simple.

      This is a case of a judge simply not knowing how art works and then ruling on it setting up a precedent with huge unintended consequences.

    • by hairyfeet (841228)
      If I had mod points you'd be at +5 because you nailed it. What this guy did was no different than a Romex watch, he saw a picture he liked and when he couldn't get the guy who made it to basically hand it over he produced a knockoff. While i believe copyrights and patents need serious reform this is actually a textbook case of what they were originally meant to do, protect someone from cranking out knockoffs and stealing their work for nothing. It isn't like he had never seen the other pic and simply stumbl
      • by jmcvetta (153563)

        So let's say someone asks to buy a copy of my super deluxe "hello world" app. I quote him $1,000,000/yr license fee. Finding my price excessive, he writes it himself. If I were English could I sue him now?

  • by itsybitsy (149808) * on Thursday January 26, 2012 @12:24AM (#38825637)

    without their permission, toss the judge in the Thames along with his ruling.

  • Actual 2 photos (Score:5, Informative)

    by Frankie70 (803801) on Thursday January 26, 2012 @12:27AM (#38825649)

    Link here [swanturton.com]

  • by SuperKendall (25149) on Thursday January 26, 2012 @12:29AM (#38825665)

    I was thinking, I could see the point - if you nearly duplicated the angle, and used a similar treatment then yeah I think a photo could be close enough for infringement even if not the same.

    But looking at the actual shot, the angle is totally different. The "treatment" is simply the (by now VASTLY overused) technique of leaving one object in color with the rest greyed out. Come on! That is in use everywhere as a common element, and I'll warrant it was even in use a fair amount before the original was taken. If ever there was a call for some kind of copyright "prior art" this is it.

    • How does a simple portrait photo survive your thinking? Same angle, same composition, some treatment. Oops!

      What about a CV or any standard document? My CV is certainly my creation so if you copy my style, are you an infringer?

      Terry Pratchett is rather famous (a reviewer on the BBC I think slammed him for it and was torn to shreds for it) for not using chapters. So if I write without chapters, I am infringing? Only one person can write without chapters? For that matter, isn't the idea of dividing a story in

  • by Anonymous Coward on Thursday January 26, 2012 @12:30AM (#38825673)

    I bet big ben has been photographed from nearly every angle, under nearly every lighting condition and season. If this holds up, they should just issue tickets to anyone holding up a camera in front of it. That and station police at every location marked as a scenic wayside.

  • by OzTech (524154) on Thursday January 26, 2012 @12:32AM (#38825683)

    The film and porn industries won't sit by and let this one survive because it will put them all out of business overnight.

  • by mbone (558574) on Thursday January 26, 2012 @12:41AM (#38825713)

    10 years ago I said that the people pushing copyright everywhere would eventually wind up with copyright nowhere (i.e., with no copyright at all, due to a total loss of public support). This sort of crap does nothing to change that feeling.

  • by CrystalFalcon (233559) * on Thursday January 26, 2012 @12:41AM (#38825719) Homepage

    Yes, the images are arguably similar. But there is absolutely no merit whatsoever to the claim that one would be a copy of the other, thus violating the copyright monopoly. What the judge has done here is to set a precedent that states that the monopoly does not just cover the creative work, but extends to a general creative idea, which completely shatters the traditional notion that the copyright monopoly only covers a specific expression of an idea, and never the idea itself.

    So what’s the big deal, then? In this case, they sought to recreate the image and took a similar one. Why is that not a violation of the copyright monopoly?

    Because that’s exactly how you do it if you don’t want to pay a license fee on the original terms. You create a similar work yourself, entirely by yourself, and compete. It’s the whole damned idea.

    Article by Falkvinge on this verdict [falkvinge.net].

  • by AHuxley (892839) on Thursday January 26, 2012 @01:04AM (#38825817) Homepage Journal
    http://www.ikea.com/us/en/catalog/products/40152586/ [ikea.com]
    Seems like a lot of artists should get some legal PO Box in the UK and a good UK lawyer. From patent trolling to art trolling?
    As for the US Unix is Linux case, if only they had thought about UK law and followed the libel tourism trade :)
    "When you go to the bookshop and look in the UNIX section, there's books on 'How to Programme UNIX' but when you go to the Linux section and look for 'How to Programme Linux' you're not gonna find it, because it doesn't exist""
  • by flimflammer (956759) on Thursday January 26, 2012 @01:07AM (#38825829)

    This judge should be slapped.

  • Uh oh. Big Trouble (Score:5, Insightful)

    by multimed (189254) <mrmultimediaNO@SPAMyahoo.com> on Thursday January 26, 2012 @01:41AM (#38825973)
    So all the people who have taken photos of people "holding up" the Leaning Tower of Pisa are in for a world of hurt, huh?
  • by devent (1627873) on Thursday January 26, 2012 @03:06AM (#38826275) Homepage

    Now a freaking IDEA is protected under copyright? Great, open the gates for all the lawyers, and people wonder why we hate them so much. No need for a patent or trademark anymore, just claim you have the copyright on the whole process how you did something (which are clearly what patents are suppose to cover).

    "its appearance is the product of deliberate choices and also deliberate manipulations by the author," and concluded that those aspects had been copied.'"

    But those aspects are just how he did it. This is not a work of art, the same way as if I carper a table, the nailing and sawing are also "deliberate choices and also deliberate manipulations", but they cannot be copyrighted.

    Fuck copyright. I never will abid to the stupid laws of copyright if I can get away with it. Sorry for all the artists that I will not give my money, but as long as the copyright laws are as such I will not recognize them. Maybe you (the artists) should get together and press to make them moral again, than I will concider to recognize them again.

    • by swillden (191260)

      Now a freaking IDEA is protected under copyright?

      Though this ruling reaches a little bit further than most, that's already been the case for a while. If you write a book that uses characters and plot are too similar to an existing book, you can be successfully sued for copyright infringement. Same for movies, same for movies made from books and vice versa, or video games, etc.

      This case focused mainly on the bad faith of the creator of the second photo, and I agree that he did act in bad faith -- first using the original photo without paying for it, an

  • by jfern (115937) on Thursday January 26, 2012 @03:19AM (#38826341)

    Everything was black and white except for that one girl with the red dress.

  • by Sigg3.net (886486) on Thursday January 26, 2012 @07:12AM (#38827175) Homepage

    The precedent here is that all (not very creative) artists who emulate someone (in awe or poor taste) have done something illegal. This is wrong.

    Society will punish these artists "socially" (=bad reputation) as we have always done, and not through legal action.

    Good taste and not lawsuits should dictate our behaviour.
    People pay millions for "the original" for the right to say "but this is the original", which makes us marvel at the work, study the details aso. While anyone can get a copy online or at Ikea..

    How will this precedent fare with stock photography, for instance? Or Disney's fairy tales that are clearly inspired by Old world tales?

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