Or can the composition of a photograph be the source of originality?
One company, Temple Island Collections ltd, is the owner of copyright in a black and white photograph of a red bus travelling across Westminster Bridge. The image is largely in black and white, with the Houses of Parliament and the bridge shown in grey. The sky is white, with no visible clouds or anything else. A bright red London Routemaster bus stands out on the bridge.
The image was published in February 2006 and has been used on souvenirs ever since. Many products have been sold bearing the image including mugs, stationery, key fobs and the like. A number of other organisations have licensed the image from the Temple Island Collections. Other company, New English Teas ltd, produces and supplies tea to a wide variety of customers throughout the world. The company’s best selling packs of tea include tins and cartons bearing images of English landscapes, Icons of England. They include images of London.
One of the images has become the apple of discord between these companies. To produce this image were taken four images, 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, they have been combined and manipulated. It was known of the Temple Island’s work when this image was produced because the whole point of the exercise was to produce a non-infringing image. The relevant point in this case was that the composition of a photograph is capable of being a source of originality.
New English Teas ltd denied that its image infringed Temple Island’s copyright. They said one must be careful to identify precisely what it is in which claimant has rights. For there to be infringement a substantial part of that (i.e. the things in which the claimant has rights) must have been reproduced by the defendants. The defendants contended that the key consideration is the assessment of the relevant skill and labour which went into the expression of the copyright work and whether that skill and labour has been reproduced in the alleged infringement. The defendants’ submissions tended to seek to minimise the effort undertaken in creating the work in this case. It was submitted from the defendant’s side that if all that can be said to have been taken from the claimant’s work is too general to be original then there can be no infringement.
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.
Plainly the claimant’s work is original. It is the result of its managing director’s own intellectual creation both in terms of his choices relating to the basic photograph itself: the precise motif, angle of shot, light and shade, illumination, and exposure and also in terms of his work after the photograph was taken to manipulate the image to satisfy his own visual aesthetic sense. The fact that it is a picture combining some iconic symbols of London does not mean the work is not an original work in which copyright subsists. The fact that, to some observers, icons such as Big Ben and a London bus are visual clichés also does not mean no copyright subsists. It plainly does.
Comparisons with other similar works are irrelevant as a matter of law in terms of originality, they do serve to illustrate how different choices made by different photographers lead to different visual effects. The common elements between the defendants’ work and the claimant’s work are causally related. In other words, they have been copied. These differences all exist but on the question of copying they do not help. In this case it is not a coincidence that both images show Big Ben and the Houses of Parliament in black and white with a bright red bus driving from right to left and a blank white sky. The reason the defendants’ image is like that is obviously because defendant saw the claimant’s work.
The whole point of this case is that defendants wished lawfully to produce an image which does bear some resemblance to the claimant’s work. Defendant sought out this other material after he had decided to produce an image similar to the claimant’s. He found examples of common elements in various different places. That does not avoid a causal link.
If defendant had seen claimant’s image, decided he wanted to use a similar one, found the Rodriguez or Getty photographs and put one of those on his boxes of tea, there would be no question of infringement. Those images are not causally related to claimant’s image, they are independent works. But that is not what happened. At best the defendants used these other images to show that certain individual elements in claimant’s work can also be found elsewhere. That does not make those different sources the actual origin of an element in the defendants’ image. The judge has rejected the submission that the other similar works acted as a relevant independent source for the defendants.
Some important and visually significant elements of claimant’s original artistic work have not been reproduced by the defendants. Looking at the two images side by side, the differences are apparent. They are not the same photograph. The defendants asserted that: the composition of the claimant’s work is extraordinarily ordinary; as such it could only really be infringed by lifting the image itself, i.e. facsimile reproduction; the level of skill and labour which went into the image manipulation is so low that it would not be infringed by anything other than facsimile reproduction, which of course has not happened.
The judge has decided that the defendants’ work does reproduce a substantial part of the claimant’s artistic work. In the end the issue turned on 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 include the key combination of what the judge has called the visual contrast features with the basic composition of the scene itself. It is that combination which makes complaint’s image visually interesting. It is not just another photograph of clichéd London icons. On the second point, the collection of other similar works relied on by the defendants have worked against them because the collection has served to emphasise how different ostensibly independent expressions of the same idea actually look. The defendants’ work infringes the claimant’s copyright.