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Spot The Difference

Image H/T PetaPixel

The images have a similar theme: a red Routemaster bus against a greyscale Westminster Palace background.  Both shots of familiar London landmarks and fairly innocuous as such images go.  At least you would think so.

The image at the top is the intellectual property of Temple Island Collection (TIC), a company that produces souvenir gifts.  The lower image belongs to New English Teas (NET).

So far, so mundane.  So what?

If you scroll down to the bottom of TIC’s page you’ll see this:

TEMPLE ISLAND SCORE SECOND COPYRIGHT VICTORY OVER NEW ENGLISH TEAS

However, TIC fail to elaborate what their victories entail.

Take another look at those images.  Red Routemaster bus, greyscale Westminster Palace.  There the similarities end.  The compositions are different even if the subjects are the same.  We’ve all seen similar images and they are nothing new.  Here’s one selling promoting London and Hyde Park Towers hotel.  Here’s another one being sold as a poster.  Such images are all over the internet and have been popular with the souvenir/poster buying tourists and public for decades.  It’s a typical London scene that must have been photographed millions of times.  Yet NET has been denied the use of their image on product packaging by a British judge because of a perceived breach of copyright.

Yes, you read that correctly.  Red bus + greyscale Westminster Palace = copyrighted by TIC.  Kerrrrr-ching.

So you want to market goods promoting Britain using an image synonymous with all that is London and British. You shoot a photograph of a world renowned London Routemaster bus using Westminster Palace as a backdrop.  You then Photoshop the image in a popular and highly unoriginal way and use it to sell your merchandise.  Job done.  But wait, what’s this?  TIC own the intellectual rights to ALL similar images even if the composition is different and the concept of a coloured subject against a greyscale background predates Adobe Photoshop by a century or more?  How come you suddenly have no choice but to approach TIC for a licence to use your image commercially?  Has the UK gone completely nucking futz?

Sadly, the answer is yes.  Yes it has.

We have a controversial and deeply stupid copyright law ruling to blame for this latest insult against fairness and common sense.  For photographers nothing is safe from the lawyers and the legal system.  Not familiar landmarks.  Not tried and tested photographic manipulation.  Not even the fruits of your creative imagination.  Not unless you are a bastard and patent your output even though it’s not original by a long shot.

You can read about the whole sorry story here.

28 Comments

  1. Insane decision. I would have thought though that there must be lots of images using this ‘concept’ that predate 2005. If the judge thinks this is original and it stands up to appeal, we are all stuffed.

    On the other hand, patenting of naturally occurring gene sequences has been allowed too, so perhaps this isn’t so unusual. Still insane though.

    Not for the first time, ‘the law is an ass’.

  2. Tim Newman says:

    I think the most nutty case I heard of was a row that ensued when Citroen stuck some lights on the Eiffel Tower about 5-10 years ago and promptly copyrighted the resulting night time image. So in effect you could not publish any photograph of the Eiffel Tower at night.

  3. Sam Duncan says:

    Welcome to the future.

    Look, I can appreciate copyright holders worrying about we IP-sceptical libertarians – they feel they have a lot to lose: I understand that, and disagree – but if you accept the concept of IP, this sort of thing is the logical conclusion. TIC created an image of a red bus in front of a monochrome Palace first (allegedly; and if they didn’t, somebody did), ergo they own it, and nobody else does.

  4. If you take it to its ludicrous extreme however, the copyright in the image photographed lies with the architect (or his estate) who created this particular view. Of course the designer of the bus deserves a cut, and don’t forget Adobe who created the tools to do it.

  5. Longrider says:

    It’s an outrageous abuse of the principle of copyright. You cannot – or, at least until now you could not – copyright an idea. I have a similar image of a boat at a local marina using the same concept – the subject is in colour and the rest of the image is in monochrome. It’s not a new idea it’s as old as colour photography. Presumably I’m now in breach of copyright.

  6. NickM says:

    ian,
    Or Nikon who made the camera… Or Pentax or Canon or Sony or…

    You raise an interesting point. If I go to an airshow (and I do) and take my camera do I owe Sony and Boeing money? My personal take is I have already given those two companies beaucoup and what I do with my Alpha-55 is none of Sony’s business any more than it’s any of Boeing’s what I do after getting off their 737. Of course it isn’t their 737 any more than my Dad’s Octavia belongs to Skoda (VW). It once did and then my Dad bought it. One would have thought that is whole principle behind car-making. I mean like to sell cars because otherwise you’re just filling up your lot to no porpoise.

    But the ownership of public space is…

  7. RAB says:

    I have just copyrighted Oxygen (Priestley missed a trick there!). I’m not a greedy person, a mere £500 per person for a lifetime’s User licence. So deep breath everybody and get your cheques in the post to me asap. ;-)

  8. john in cheshire says:

    NickM, on the subject of cars, I’ve long pondered the idea of replacing the badges (in my case, Honda) with my own designs. Why should I be a moving advertisement for their product (now, I happen to like Honda, and have no gripe with them, but if I had a german car, for example, which is never going to happen, but if it did, why should I have to have their badges on a thing that I own?

  9. NickM says:

    john,
    In the ’20s there was a huge market for third-party car ornaments. Some these days are rather valuable. Some are quite beautiful and all were originally designed to disembowel you.

  10. Schrodinger's Dog says:

    So even if you don’t get banged-up under the anti-terrorism legislation for photographing a public monument, such as the Houses of Parliament, you can still be sued.

    Great!

    I wonder where this will end? http://www.theonion.com/articles/microsoft-patents-ones-zeroes,599/

  11. Tim Newman says:

    I’ve long pondered the idea of replacing the badges (in my case, Honda) with my own designs.

    First thing my rather eccentric mother did on the occasion she had a new car was to take off the garage’s rear window sticker and ask them to remove their name from the numberplate on the grounds that she was not obliged to advertise on their behalf.

  12. Lynne says:

    Any car of mine that comes with the EU’s ring of arseholes on the reg plates quickly gets a new set of plates. I refuse to show consent or support for those unelected fuckwits in any way, shape or form.

  13. Greg Tingey says:

    http://www.amazon.co.uk/Bus-We-Loved-Londons-Routemaster/dp/1862077940

    Now, is this excellent book, published 2005 in copywright breach, or the other way around?

    Insane

  14. The Jannie says:

    As a photographer and photoshopper of many moons’ standing I would be ashamed to put my name to either image.

  15. The thing about that view is that the buildings in it were pretty much all designed by one man, so it is plausible to claim that the arrangement of the view was deliberate and considered, in just the same way as a painting of a bowl of fruit. On the insane logic of this case, it would be plausible to argue that any photograph of it would be in breach of copyright.

    In general though, I’m sure we could provide a public service by looking for example of monochrome photos with a single coloured object like a bus in it, dating from before 2005. Flickr might be a good start, but there must be something somewhere.

  16. Sam Duncan says:

    Lynne, I’ve been meaning to do a post about how few cars you see with ring-of-stars plates for a while. It’s not something most people probably pay much attention to, but, at least round my way, they’re much less common than you might expect. I counted them up once, on a walk of about a mile and a half (well, you have to do something to amuse yourself). I can’t recall the exact figure, but discounting foreign-registered cars, it worked out around 10%.

    There surely can’t be that many people actively rejecting them like you. I suspect some kind of market effect: dealers noticing that cars with traditional unadorned plates sell faster or something. Or, arguably more likely, a large number of anti-EU dealers who’ll be damned if they’re going to collaborate in the Union’s propaganda campaign.

    Either way, there’s definitely not nearly as many about as you might have expected back when they came in.

  17. Fred says:

    This case seems rather like the Twelve Monkeys interrogation scene being ruled infringing the copyright of a Lebbeus Woods drawing. For details see here: http://www.benedict.com/Visual/Monkeys/Monkeys.aspx

    Both rulings seem perfectly reasonable to me, but then I’m an IP professional (patents mostly), so what do I know.

    Copyright as a legal concept is rather more complex than just congruence of two works.

  18. Lynne says:

    Fred there is a line to be drawn between protecting an original work (which neither of the above are) and rank stupidity. But then I’ve only been in the microstock game from the administration end for eight years so what would I know?

    ;)

  19. fred says:

    Let’s see if it works here now…

    In summary, what I was going to say was that reading the decision deals with all the points raised above. I’m on mobile so can’t remember exactly, but istr it’s interesting from about para 36 or so.

  20. Paul Marks says:

    Whether the idea of copyright makes sense in theory I will leave to others to argue – but clearly it does not work in PRACTICE (this judgement is just one of many – with armed police treating New Zealand as if it was part of the United States, when one serves the interests of Hollywood there are no limits on what one may do, and on and on).

    Again whatever the merits of the idea of copyright in theory, in PRACTICE it is clearly nuts – and should be abandoned.

  21. fred says:

    Hands up who has actually read the decision except me

    Bonus points for also having a background in intellectual property.

    Having read the decision, it’s not nuts at all. Read it and you’ll see why

  22. Copytight says:

    I once heard Windows tried to register the word windows as theirs, all theirs.

    So my window-cleaner would have had to be careful when he came to clean my glazed apertures that he didn’t mention more than one, unless he wanted to charge me more and send the cheque off to Microsoft.

    Likewise estate agents would have to stay with the singular to avoid extra fees. “Yes, the house has a window, and another one. Oh and one over there. Plus one more upstairs, and another window next to it…”

  23. Lynne says:

    The images were not shot from the same viewpoint. One image was shot from the embankment and the other on the bridge itself. Even if you crop the TIC image you still wouldn’t be able to reproduce the NET image. The images are not the same. As far as the sky is concerned, if there is a general light grey overcast it will come out as white if you render the image into greyscale. All you need to do is adjust the contrast and light levels slightly. Anyone with a basic knowledge of Photoshop would be able to render the sky white without cutting and replacing it. I would have thought that a white background would be essential, cost-wise, for printing purposes on product packaging.

    The claimant’s case, because there was apparently insufficient British jurisprudence or precedence, required the inclusion of a ruling of an Austrian court. Ain’t EU law wonderful…

    It seems that TIC’s major beef was to see it’s products being sold alongside NET’s products. The ruling apparently relied on the burden of “evidence” that NET copied the TIC format. But there are many similar images from which NET could have found its “inspiration”. From what I can see the ruling was made because NET’s defence was inadequate and failed to explore various avenues, not because TIC was in the right.

    The only real winners of cases like this are the smarmy gits in wigs and gowns serving a legal system that has made the laws of intellectual property rights so obfuscatory and land mine laden that not even lawyers know whether they are coming or going.

    Just because it is law doesn’t make it right or just. In this case the law got it wrong on more than one level.

  24. fred says:

    The defendants didn’t even attempt to argue independent creation. So they tacitly admitted copying.

  25. Lynne says:

    The defendants do not appear to have been served particularly well. A half arsed defence is no defence at all. You could drive an entire fleet Routemaster buses through it. As far as tacit is concerned, unspoken implication is not an absolute in the sense that I did it M’lud. You got me bang to rights. is. It is open to too much interpretation. Something on which to base an appeal perhaps.

    If I was NET’s owner I’d demand a refund.

  26. Paul Marks says:

    Why bother to appeal?

    Just make sure (in future) that more and more internet stuff is done from countries that do not (de facto) enforce copyright law.

    That is, after all, what is going to happen – international treaties or no international treaties.

    It has to be done that way anyway – as “defence of intellectual property” has another aspec (a not-so-hidden agenda) the destruction of free speech on the internet.

    The Acts and treaties that are being pushed would open the door for censorship (under the cloak of protecting intellectual property rights) – and that is the real reason that government types (as opposed to just greedy Hollywood types and music industry types) support these measures.

    As both Hollywood and the popular music industry have condemned (in the most savage terms) “greedy big business” for DECADES (indeed their films and songs and political comments are about little else), it is rather ironic that they are now willing to support (indeed push for) just about anything from governments, in order to protect THEIR OWN profit margins.

    “But without this, actors and popular music people will go back to what they were in the 19th century – making a poor living by live performances, rather than making a fortune by recording technology”.

    Oh dear, how sad, never mind.

    After all – as they all say how much they despise profits (and support Obama – indeed give him millions upon millions of Dollars) they should WELCOME their future poverty.

  27. Lynne says:

    After all – as they all say how much they despise profits (and support Obama – indeed give him millions upon millions of Dollars) they should WELCOME their future poverty.

    I’d be happy to welcome THEIR future poverty because their output isn’t vital to civilisation only the entertainment industry. Maintaining the status quo is for their benefit but technology has passed them by and they should have that hammered into their turgid and awareness retarded brains. These people are behaving like neo feudal lords which is why we have to fight tooth and nail to ensure we do not allow ourselves to become 21st century serfs to be punished and have what few freedoms we have left shit upon and then smeared in our faces.

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