Charles Swan is one of the UK’s top intellectual property lawyers. His opinions on copyright and court judgements are to be taken seriously. Cory Doctorow…well, perhaps not so much.
Recently His Honour Judge Birss QC found in favour of Justin Fielder and Temple Island in the company’s claim that Nicholas Houghton and New English Teas had breached copyright in production and publication of a photograph [above right] of a London bus that had been Schindlered to within an inch of its life. Temple Island’s case was that the New English image was an obvious copy of their own Schindlerfest [above left] from a few years before. But although similar in many ways the two are entirely separate images: so where was the infringement?
Swan described the ruling as “ perhaps surprising”, a phrase that can have myriad meanings coming from a lawyer. But for the Interweb it meant just one thing: the sky was falling. “Photographers Face Copyright Threat After Shock Ruling”, screamed Amateur Photographer. “Create A Similarly Composed Photo In The UK And Risk Copyright Infringement”, howled Petapixel. According to these and others, anyone in the UK taking a photograph similar to an existing photograph now risked ending up in court for breach of copyright. To the most deranged, “taking a photo in the same place where someone else took a photo can now be a crime.”
None of this was true, but with crashing inevitability the most misleading and hysterical analysis came from Doctorow at Boing Boing. Eager not to let the facts get in the way of a good story, or perhaps because he’d neglected to actually read the judgement he was commenting on, Doctorow took aim at the “insane” and “bizarre” ruling and let rip:
“If a Reuters and an AP photographer are standing next to each other shooting the Prime Minister as he walks out of a summit with the US President, their photos will be nearly identical. Will the slightly faster shutter on the AP shooter’s camera give him the exclusive right to publish a photo of the scene from the press-scrum?”
“The judge here ruled that the idea of the image was the copyright, not the image itself.”
“This creates a situation where anyone who owns a large library of photos — a stock photography outfit – can go through its catalog and start suing anyone with deep pockets: ‘We own the copyright to “two guys drinking beer with the bottoms of the mugs aimed skyward!”’It’s an apocalyptically bad ruling, and an utter disaster in the making.”
Doctorow’s hysteria is of course unfounded. Just one paragraph from Birss’ ruling comprehensively demolishes Corky’s claims:
“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. Such an image would not infringe.”
So why did the defendants go to such “elaborate lengths” and why did Birss rule the way he did? Simple: the combatants had history. New English had previously infringed a Temple Island image and settled in court. Temple Island offered to license an image to New English, but the latter declined. Instead they set out to produce their own image based on that of Temple Island: make it as close as possible, went the thinking, but just different enough to avoid infringing. That’s a judgement call, and New English got it wrong.
Helpfully Birss even spelled out exactly how they’d got it wrong. If New English had never seen the Temple Island image and had produced even an identical image independently they would have been in the clear. If New English had scoured the web for similar images for inspiration and produced the image they actually did, they still would probably have been ok. But instead they were interested only in the Temple Island image, copying it as closely as they – wrongly – felt safe to do. And in so doing they breached Temple Island’s original expression of an idea.
Note the “original expression” bit. Contrary to what Doctorow, Techdirt and numerous others tried to claim, Temple Island hadn’t suddenly claimed copyright of London landmarks, Schindlered or not. They simply objected to another company – whose products incidentally sell alongside theirs in tourist outlets – studying one of their most marketable images, then setting out to replicate it as closely as possible.
In other words, the judge reached his conclusion by employing a commodity clearly lacking at Boing Boing, Techdirt and elsewhere: common sense.