Photography is probably one of the most popular art forms today, with social media platforms such as Instagram, Pinterest and Vine encouraging the professional and the amateur photographer to share their images. Such platforms encourage users to think of themselves as having copyright in their images, so it may come as a surprise that copyright law is not clear-cut when it comes to protecting photographs. Furthermore, when it comes to digitally enhancing or altering photographs, photographers need to be aware of the risks of copying visually significant elements of other images. The ‘Red Bus’ case, decided last year in the English Patents County Court, illustrates the difficulties businesses can face when using ‘photoshopped’ photographic images.
The images in dispute
The Red Bus case concerned images of a London bus crossing Westminster Bridge in front of the iconic Houses of Parliament. Temple Island Collections Limited used one image on souvenirs of London, while New English Teas, used the other image on tea packaging.
These images had both been digitally altered from original photographs so that the images were black and white with the bus coloured red, although the two images were not identical. The story of how these images were created is more extensively discussed here, here and here, but, in summary, the two parties had a history, having already met in court previously when Temple Island Collections Limited sued New English Teas for copyright infringement concerning images which were much more similar. New English Teas attempted to create an image that did not infringe Temple Island Collection’s copyright, and it was this second image that was the subject of the 2012 litigation.
Temple Island Collections Limited felt that New English Teas had copied their image, while New English Teas felt it was unfair for Temple Island Collections Limited to claim a monopoly over a particular type of digital enhancement of a photograph of a well-known landmark and called into question whether this type of image could attract copyright protection.
Copyright infringement in digitally manipulated photography
Having established that the images were capable of copyright protection, Justice Birss considered whether the second image could infringe the first. Traditionally, copyright infringement has been thought not to occur when two independent photographers take pictures of the same iconic subject, because of the original input from each photographer.
Temple Island Collections alleged that the second image reproduced a ‘substantial’ part of their image, and therefore infringed their copyright. New English Teas disagreed, arguing that this would give Temple Island Collections a monopoly over a particular digital manipulation of a popular iconic image.
Justice Birss compared the two images and considered the parties arguments. The fact that the parties had produced their respective images independently from original photographs was insufficient to avoid copyright infringement. It is not the skill and effort of the author or photographer which is relevant for copyright purposes, but the effect of the final work. In particular, for a photographic image, Justice Birss considered the visual effect of the final image to be the most important element in determining copyright infringement.
The bright red bus against the monochrome background, and the blank sky were of particular importance to the visual effect of the first image. Differences in other compositional aspects like the direction of travel, presence of people and traffic and scale of the composition, were less significant. Justice Birss found that the selection of the visually significant elements of the first image, the monochrome image with the bright red bus, and the blank sky, by New English Teas was deliberate, given the parties history it would have been difficult for New English Teas to deny that they were unaware of the first image. So, although New English Teas had not physically reproduced the same work, Justice Birss found that they had copied the ‘visually significant’ elements of the image used by Temple Island Collections Limited and by using the ‘key combination’ of the important visual elements from the Temple Island Collection image, New English Teas had copied a ‘substantial’ part of the first image. Therefore, New English Teas had infringed the copyright of Temple Island Collection Limited’s original image.
The ‘Red Bus’ case has been quite controversial in legal circles because the rule of thumb for intellectual property is that the law does not protect ideas, but only the specific expression of those ideas. For some, a black and white image with one colour picked out is merely an idea, most famously used in the 1993 film Schindler’s List. After the case, the court was asked to consider a considerably more cropped image of a red London bus in front of Big Ben, reported here, and found again that the visually significant elements of the first image were present.
Businesses and individuals who regularly engage in altering and enhancing photographic images can take comfort from the decision that these efforts are likely to be intellectual endeavours that attract copyright protection. Intellectual property is a valuable asset for many businesses and assigning or licensing such images can provide a revenue stream. However, the availability and ease of use of photographic software such as Photoshop also presents risks for photographers, because they cannot be sure that simply because they are working with their own photographs they will be safe from copyright infringement. Copying the techniques other photographers have used to manipulate images could infringe copyright. Photographic software which provides templates for digital manipulation is particularly risky, as other photographers will be regularly using the same templates. More than anything, the ‘Red Bus’ case illustrates the need for photographers and design agencies to familiarise themselves with copyright law and keep up to date with developments.
Businesses that use photographic images need to be aware of the risks highlighted by the Red Bus case. Working from original photographs is not enough to avoid copyright infringement. Businesses and individuals need to educate themselves on copyright law and have in place robust risk management procedures to avoid copyright infringement when digitally enhancing and altering photographs.