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Message: <blockquote data-quote="Yaarel" data-source="post: 8926256" data-attributes="member: 58172">Much of the case describes what a photograph is, and why it is copyrightable.[SPOILER]Subsistence of copyright <ul> <li data-xf-list-type="ul"> Copyright subsists in original artistic works (s1(1)(a) of the Copyright Designs and Patents Act 1988). "Artistic work" means "a graphic work, photograph, sculpture or collage irrespective of artistic quality" (s4(1)(a)). "Photograph" means a "recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film" (s4(2) of the 1988 Act).</li> </ul><ul> <li data-xf-list-type="ul"> At trial it was common ground that the impact of European Union law meant that the judgment of the CJEU in the Infopaq case (C-5/08 <a href="http://www.bailii.org/cgi-bin/redirect.cgi?path=/eu/cases/EUECJ/2009/C508.html" target="_blank">[2010] FSR 20</a>) was such that copyright may subsist in a photograph if it is the author's own "intellectual creation". After trial it was also common ground that the recent judgment of the CJEU in the Painer case (C-145/10, 1st December 2011) was to the same effect and did not necessitate further submissions from the parties.</li> </ul><ul> <li data-xf-list-type="ul"> Mr Edenborough also referred me to and relied on O (Peter) v F KG ([2006] ECDR 9) decided on 16th December 2003. This is a decision of the Austrian Oberster Gerichtshof (Supreme Court). It is a court which comprises judges with considerable expertise in intellectual property matters. The court there was considering a claim to copyright in photographs of grape varieties used as illustrations in a book. They were applying an approach to copyright based on the principle that the work must be the creator's own intellectual creation. They held (in translation):</li> </ul><ul> <li data-xf-list-type="ul"> Although the language used in this judgment differs from the way in which an English court would traditionally express itself in a copyright case, I believe there is no difference in substance between the law as applied here by the Austrian Supreme Court and the law here. A photograph of an object found in nature or for that matter a building, which although not natural is something found by the creator and not created by him, can have the character of an artistic work in terms of copyright law if the task of taking the photograph leaves ample room for an individual arrangement. What is decisive are the arrangements (motif, visual angle, illumination, etc.) selected by the photographer himself or herself.</li> </ul><ul> <li data-xf-list-type="ul"> The parties also referred to the commentary in the text book Laddie Prescott & Vitoria (4th Ed.) in paragraphs 4.60 and 4.61. There the learned authors discuss some of the special problems with photography in copyright law given that the mere taking of a photograph is a mechanical process involving no skill at all and the labour of merely pressing a button. The authors, with almost but not quite perfect geographical prescience, make the following observation and pose a question: It is obvious that although a man may get a copyright by taking a photograph of some well known object like Westminster Abbey, he does not get a monopoly in representing Westminster Abbey as such any more than an artist who painted or drew the building. What then is the scope of photographic copyright?</li> </ul><ul> <li data-xf-list-type="ul"> The question is answered by drawing attention to three aspects in which there is room for originality in photography:</li> </ul><ul> <li data-xf-list-type="ul"> Neither side made detailed submissions about aspect (i). There is clearly room for originality there. It relates to the same category as the decision of the Austrian Supreme Court.</li> </ul><ul> <li data-xf-list-type="ul"> Aspect (iii) is supported by the dissenting judgment of Romer LJ in Bauman v Fussell (1953) [1978] RPC at 493 (CA) but of course that was a dissenting judgment. Mr Davis questioned whether it was correct in law and referred to the judgment of Neuberger J (as he then was) in Antiques Portfolio v Rodney Fitch [2001] FSR 345. The learned judge detected (at p352-353) a difference between the passage I have quoted above from Laddie Prescott & Vitoria (albeit an earlier edition) on the one hand and the text books Copinger and Nimmer in the other in relation to a case about "a purely representational photograph of a two dimensional object such as a photograph or painting". Thus the context in which Neuberger J's problem arose was a long way from the facts of this case. I do not have to resolve that particular legal dispute.</li> </ul><ul> <li data-xf-list-type="ul"> Mr Davis referred to Krisarts v Briarfine [1977] FSR 557 (Whitford J). That case was an application for an interlocutory injunction concerning paintings of yet more well known views of London such as Big Ben, the Houses of Parliament and Westminster Bridge. At p562 Whitford J said this: When one is considering a view of a very well known subject like the Houses of Parliament with Westminster Bridge and part of the Embankment in the foreground, the features in which copyright is going to subsist are very often the choice of viewpoint, the exact balance of foreground features or features in the middle ground and features in the far ground, the figures which are introduced, possibly in the case of a river scene the craft may be on the river and so forth. It is in choices of this character that the person producing the artistic work makes his original contribution.</li> </ul><ul> <li data-xf-list-type="ul"> Mr Davis submitted that this served to emphasise that particular attention must be paid to the details in the case of commonplace works. I agree. One does need to be a little careful given that the quoted passage obviously related specifically to the facts of the case Whitford J was considering. The particular details mentioned clearly related to the facts of the case before the learned judge.</li> </ul><ul> <li data-xf-list-type="ul"> I can take aspects (ii) and (iii) together. The relevant point in this case seems to me to be that the composition of a photograph is capable of being a source of originality. The composition of an image will certainly derive from the "angle of shot" (which Laddie Prescott and Vitoria categorise in sub-paragraph (i)) but also from the field of view, from elements which the photographer may have created and from elements arising from being at the right place at the right time. The resulting composition is capable of being the aggregate result of all these factors which will differ by degrees in different cases. Ultimately however the composition of the image can be the product of the skill and labour (or intellectual creation) of a photographer and it seems to me that skill and labour/intellectual creation directed to that end can give rise to copyright.</li> </ul><ul> <li data-xf-list-type="ul"> The present case also illustrates what could be a fourth category which could be added to the three given by Laddie, Prescott & Vitoria. Mr Fielder's manipulations do not easily fall into any of these three headings although they could be regarded as an extended form of type (i). It may be noted on the facts of this case that Mr Fielder's manipulations were not just matters affecting the colouring and contrasts in the image, they also had an effect on the composition itself, since people were removed from the foreground.</li> </ul><ul> <li data-xf-list-type="ul"> At one point at trial there was a brief discussion about whether the image at <a href="http://www.bailii.org/ew/cases/EWPCC/2012/1.html# Annex1" target="_blank">Annex 1</a>  was strictly speaking a photograph at all within the terms of the Act. Perhaps it is a form of collage but in any event the defendants did not suggest that the work fell outside s4 of the 1988 Act. In my judgment the work is a photograph since what has been manipulated is still ultimately a recording of light. I suppose one can say that the white sky is not a recording of the light which was there when Mr Fielder opened the shutter in his camera because Mr Fielder cut it out in the computer. If that is of such significance that the work has ceased to be a photograph then it must be a collage.</li> </ul>[/SPOILER] <ul> <li data-xf-list-type="ul"></li> </ul>Meanwhile, earlier I said clearly, a photograph is copyrightable. The case refers to infringing on the copyright of a photograph.[SPOILER]Infringement of copyright <ul> <li data-xf-list-type="ul"> Copyright is infringed by reproducing the whole or a substantial part of a work in a material form (s16 and s17 of the 1988 Act). It was common ground between the parties that a "substantial part" is a matter of quality not quantity. Mr Edenborough summed up the task here based on Designers Guild <a href="http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/2000/58.html" target="_blank">[2000] 1 WLR 2416</a> in the House of Lords. First one asks whether there has been copying and if so which features have been copied, and then asks whether that represents a substantial part of the original. One does not then ask if the alleged infringement looks on the whole similar, because one can reproduce a substantial part without necessarily producing something that looks similar even though of course it may do so.</li> </ul><ul> <li data-xf-list-type="ul"> Mr Edenborough referred to the United States case Gross v Seligman 212 F 930 (1914) to establish the proposition that copying a photograph does not require a facsimile reproduction, it is enough to recreate the scene or a substantial part of it. I entirely agree that as a matter of principle photographs, as one species of artistic work in s4 of the Act, are not to be treated differently from other artistic works and one consequence must be that s17(2) cannot be construed as referring only to facsimile reproductions of a photograph itself since it does not mean that for other artistic works. Mr Davis did not suggest otherwise. To say that it is "enough" to recreate a scene puts the matter too high. The point is that it is possible as a matter of principle to infringe copyright in a photograph in an appropriate case by recreating a scene which was photographed. The sort of appropriate case which comes to mind would be when the skill and labour of the author (or in Infopaq terms the author's intellectual creative effort) went into creating the scene which was photographed in the first place.</li> </ul><ul> <li data-xf-list-type="ul"> The defendants' submissions tended to seek to minimise the effort undertaken by Mr Fielder in creating the work in this case. So the place where he stood was where many tourists stand and Photoshop is a bog standard bit of software which anyone can use. It seems to me that one needs to be careful with arguments of this kind in cases about copyright in artistic works.</li> </ul><ul> <li data-xf-list-type="ul"> Mr Davis submitted 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. I think that is probably true in the abstract and may be nothing more than a potted summary of Designer's Guild, especially bearing in mind Infopaq. However the way in which Mr Davis sought to apply that idea to the facts of this case seemed to me to risk confusing what the artist actually did to create the work and what the result of that effort was. The case of Interlego v Tyco <a href="http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKPC/1988/3.html" target="_blank">[1988] RPC 343</a> in the Privy Council has a bearing on this point. It was concerned with originality. That case held that the skill and labour which was relevant to the originality of an artistic work was that which was visually significant.</li> </ul><ul> <li data-xf-list-type="ul">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. Just because the Act provides for copyright in these original artistic works irrespective of their artistic quality (s4(1)(a)), does not mean that one ignores what they look like and focuses only on the work which went into creating them.</li> </ul><ul> <li data-xf-list-type="ul"> I will approach this based on Designers Guild itself.</li> </ul>[/SPOILER]Note. "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 important is that he or she has used them under the guidance of their own aesthetic sense to create the visual effect in question."The case is about in what way a copyrighted photograph can be infringed.The "elements ... which have visual significance" matter.And so what?Writing game rules isnt the same thing as imitating a copyrighted image.Again. This post misrepresents what I said. I said clearly: Never copy-paste. Your accusation of "literally copying copyrighted text" is false.Moreover, to loosely describe public content, such as "gnomes are small" is fine!</blockquote>

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