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Copyright Infringement - Ramifications for all Photographers?

Discussion in 'The Watering Hole' started by stillshunter, Feb 1, 2012.

  1. stillshunter

    stillshunter Super Moderator Emeritus

    Nov 5, 2010
    Down Under
    Mark
    This sounds a little scary for many of us who have photographed the often photographed :eek:
     
  2. kyteflyer

    kyteflyer ~@¿@~

    Jan 31, 2011
    Newcastle, Australia
    Sue
    I think its more likely to become an issue if you make money off your photography: as in the case quoted, the infringement was by a company selling tea... Mind you, in looking at the two photographs, I think an appeal would be worthwhile. As I read the article I expected the two photographs to be effectively the same... but apart from the selective colour and location, they werent. Go figure.
     
  3. Landshark

    Landshark PhotoDog

    Jul 15, 2010
    SoCal
    Bob
    I have to tell you on the side of enforcement of copyright infringement, way too many people and companies think nothing of stealing images, music, films and ideas and unless you have been the victim of this type of theft, it is hard to understand and feel the depth of the problem
     
  4. Will

    Will SC All-Pro

    Aug 30, 2010
    England
    As I understand it they wanted to use the original image but didn't want to pay for it and so deliberately set out to recreate it. It wasn't a case of it happening to be similar.
     
  5. Landshark

    Landshark PhotoDog

    Jul 15, 2010
    SoCal
    Bob
    that is the usual problem
     
  6. Luckypenguin

    Luckypenguin SC Hall of Famer

    Dec 24, 2010
    Brisbane, Australia
    Nic
    You can copyright Big Ben?
     
    • Like Like x 1
  7. Luke

    Luke Super Moderator

    Nov 11, 2011
    Milwaukee, WI USA
    Luke
    If they wanted the same shot, the should have gotten the same shot. My God....did you people SEE the 2 shots? It's like the court ruled that no one else can use an image of a red bus on a black and white London street. If there is an appeal and they want to hire an international photography expert.....I'll need to be flown there and VERY well compensated ;)
     
  8. kyteflyer

    kyteflyer ~@¿@~

    Jan 31, 2011
    Newcastle, Australia
    Sue
    I've never had a photograph stolen (that I know of) but 10 years ago when I was doing a lot of "skinning" for various windows apps I had stuff knocked off left right and centre. It wasn't just copied. The original GFX were taken and, shall we say, repurposed. So I do get it.

    OK, thats different. Deliberate? inexcusable. However, they failed, magnificently. Recreation? YIKES. FAIL!
     
  9. Djarum

    Djarum SC All-Pro

    Jul 10, 2010
    Huntsville, AL
    Jason
    This was posted on dpreview. I read the story and it doesn't seem as simple as it just a title suggests.

    Similar, but not copied, image found to breach copyright: Digital Photography Review

    Copy of court ruling:

    Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1 (12 January 2012)


    I'm a U.S. citizen and I'm going to look at this from that point of view.

    The United states has three different types of intellectual property(or IP) that we protect. First are copyrights. Copyrights protect original authors of photography, music, or any kind of art or literature from being copied. More specifically, it protects the form of expression and NOT the subject material. Second, we have trademarks. Trademarks are pictures, words, or names distinguishing companies from each other. Here in the USA, trademarks have to be registered with the Patent office. Copyrights do not. The last form of IP we have are patents. Patents in the USA are the closest thing we have to "idea protection". Specifically though, one cannot just have an idea and claim it as his or her own for protecting. Patents require specific documentation on the implementation of the idea and the possible construction or prototyping of the "idea". Keep in mind that "ideas" can be patented without the need for a physical device or apparatus. For example, Apple has several patents on ways to use a device, but do not describe the actual device, just the process in which to use the device.


    Now that I've gotten that out of the way, we have to look at what happend in this case. There was a previous licensing disagreement even before this case between the two parties.

    NIPC Law: Copyright in Photographs: Temple Island Collections and Creation Records

    The second image was created by the defendant after a deal could not be reached on the defendant using the first image for his tea company. Basically the defendant felt it would be cheaper to hire a company, take some similar shots, and process this similarly in photoshop or whatever to achieve a similar but not exact image.

    In my own opinion, this is not a copyright issue. We aren't talking about exact copies of an image. Copyright laws don't protect the subject matter either. Everyone can take images of landmarks and process them how they wish. Copyright laws do protect a form of expression, which completly is subjective. The problem with civil suites in regards to copyrights and forms of expression is that it is awefully difficult to compare two similar works an say they have the same form of expression. We'd have rock bands sueing other rock bands all the time.

    This to me is more of a trademark issue or patent issue, even though the courts in London see it more as a copyright issue. There are two themes in the case. The first theme is the images themselves. If we take away how they are used, and just look at them as two images and two artists, I think here in the states it might be difficult to say both have the same or similar expression, since one is not a pure copy of the other. I guess in a copyright case it could go either way. From what I've seen in the music industry, it seems dicey at best.

    The other component to this case however is how they are used. Both are being used on products, though very different products. If the first image was trademarked to the souvenier company, they would have a very strong claim against the tea company. Usually whoever has the most money or who has they most widely recognized trademark usually wins in these cases, regardless if the trademark was actually filed at the patent office or not.

    If we actually look at why the judge ruled in favor of the claimant, it does make some sense. To some degree the judge is protecting the body of work in the image, not the image. In some ways, this is how patents are described. If two similar processes are used to achieve two similar results, usually the first wins. I'm not suggesting that taking the images and the process of photoshoping is what is being protected or should be protected. Generally speaking though; it's about all the variables added up to make that specific image and the expression of the image. I also think that if the two images and authors were unknowing to each other, there would have been a different ruling. It was obvious in this case that the defendant specifically wanted a certain artistic expression and tried to reproduce it.
     
  10. Djarum

    Djarum SC All-Pro

    Jul 10, 2010
    Huntsville, AL
    Jason
    Yes and no. If you went to San Fransisco and made a red trolly against a monochrome San Fransisco street, you'd probably be ok. If you tried to make something similar in London, you might be in trouble if you tried to make money off of it. Like in my previous post, at least I think, this becomes more of a trademark issue than a copyright issue, especially now that the image is now famous because of the court ruling.
     
  11. Luke

    Luke Super Moderator

    Nov 11, 2011
    Milwaukee, WI USA
    Luke
    Well, I read a bit more and I understand the LEGAL arguments. But it is certainly a different matter from common sense. I reckon you could go back to images from the earliest days of the red buses and find similar shots.
     
  12. Luke

    Luke Super Moderator

    Nov 11, 2011
    Milwaukee, WI USA
    Luke
  13. BillN

    BillN SC Hall of Famer

    Aug 25, 2010
    S W France
    Bill
    This example of "copyright protection" is nuts

    we are living in a Lawyers paradise - there are loads of them in our "western world" sitting in back room offices thinking up ways of making money from simple everyday events .........

    Large corporations with big (back) libraries of seldom used product design going back years should now review these with the intention taking action against anyone who is currently using a similar design

    Money for (producing) nothing - to help the (western) world into further decline

    (PS - I have just destroyed my 37 images of a London Bus going over Westminster Bridge - as such images now belongs to some commercial organisation(s) - (unknown to me) - who use such to make money - "for Gods sake" - how crazy - there are things that should be protected and this is not one of them)

    PPS - In fact I better destroy ALL my London images as I am sure that they are similar to something that has/is being used commercially
     
  14. stillshunter

    stillshunter Super Moderator Emeritus

    Nov 5, 2010
    Down Under
    Mark
    Thanks all. You've nailed my thoughts on the matter as well. OK it's about the right to make money for Pros and advertising execs, but I still contend the precedent is preservation of intellectual property gone mad. I mean it's like company's claiming exclusive copyright over English words they didn't invent like "Enjoy" (Coke) or "Yes" (Optus, here in Australia). :dash2:
     
  15. Djarum

    Djarum SC All-Pro

    Jul 10, 2010
    Huntsville, AL
    Jason
    I'm personally on the fence on this.

    http://www.copyright.gov/circs/circ1.pdf

    The way that copyrights are protected here in the US is that works don't have to be registered or published to be copyrighted. There are some benifits to registering, and that does allow individuals or companies to put that circle C on the work.

    I'm a computer engineer. I deal with processes and written software on a daily basis. Let's say I design a new process or software that does a specific task that is revolutionary or not common knowledge. The software is used and sold to a specific company. Another company contacts me about using the software and decides it's too expensive, and they will create it themselves or backward engineer the software I have. As someone trying to make money off of software, I'd sure be upset. It's one thing entirely to try and reproduce something for personal use and another to try and reproduce it for commercial use. In my opinion that is what the defendant did here. We have gone beyond the simple copyright of just an image, but to the commercial use of the image or idea. Basically the defendant got caught reverse engineering, so to speak. In my business it's every easy to get away with reverse engineering to get around patents or copyrights, and only those with big money have the time or energy to go after those who infringe. The other problem is that the time to market is so fast that even new products using new "patentable" ideas just doesn't make any sense because it takes to long to go through the application process before the release of the product.

    What irritates me about current patent/copyright law is that ideas and processes are patented when in some cases they are already common knowledge to the industry or users. The patent laws used to be there to protect people who come up with new ideas. Now the patent office protects commonly used practices or processes which the first company can get to patent, which in my opinion, is not what patents are about.
     
  16. kyteflyer

    kyteflyer ~@¿@~

    Jan 31, 2011
    Newcastle, Australia
    Sue
    In the first case, they aren't trying to sell anything. In the second... I dunno... *is* it older? In any case, they are selling the photograph, not using the photograph to sell something else.

    Oh what a tangled web.
     
  17. TraamisVOS

    TraamisVOS SC Hall of Famer

    Nov 29, 2010
    Melboune, Australia
    Excellent point Luke.

    There are a few variables when suing for copyright. For one thing, anyone suing for copyright must be able to show a nexus between the alleged 'stolen' work and 'copied' work.

    It's not all doom and gloom, whe it comes down to it copyright law seeks to protect fair use and fair dealing of copyrighted works.

    Copyright law does not seek to curb artistic freedom or freedom of artistic expression.

    Copyright law does seek to catch those who go out of their way to breach someone else's copyright, that's the point that is lost sometimes when I see photographers (and other artists) talk about cases like these.