Copyright in photographic works has always had an uneasy...



Copyright in photographic works has always had an uneasy relationship with the idea-expression dichotomy, which generally limits protection to the physical manifestation of a work rather than its underlying principles or abstract concepts. In a decision sure to reignite the debate, Birss J has held that a photograph which reproduced the composition, subject matter and editing of the original infringes copyright: Temple Island Collections Ltd v New English Teas Ltd [2012] EWPCC 1.  The infringing photograph:

The defendant's infringing photograph

This conclusion is consistent with Bauman v Fussell and a long line of English and American cases.  It’s also a fairly logical result of applying Infopaq to a photograph, where the author’s intellectual creation consists of the choice and arrangement of moment, rather than the skill in capturing it.  (Arguably, the Court could also have made more of the original contributions arising from post-processing.)  The Court seems to have been influenced by the commercial context in which the copying took place:

  1. 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. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe. It may or may not have the same appealing qualities as the claimant’s image. Even if it did they would be the result of independent skill and labour employed by the independent photographer. Again however that is not what happened.
  2. Mr Davis submitted that a finding of infringement in this case would give the claimant a monopoly which was unwarranted. He uses the word “monopoly” in a pejorative sense but it does not help. All intellectual property rights are a form of monopoly, properly circumscribed and controlled by the law. In any case I do not accept that a finding for the claimant in this case is unwarranted.

Yet the result remains troubling.  This was not bit-for-bit copying but the product of independent labour.  Was copyright law intended to prevent non-identical the use of independent mechanical means to recreate the underlying theme, style or idea in a work?  Arguably not, but that seems to be the result in Temple Island.  Expect the engines of internet criticism to go into overdrive for this one.