A case causing somewhat of a stir in the world of copyright law at the moment is the recent Temple Islands case about photographs of a bright red routemaster bus. The case was heard in the Patents County Court by His Honour Judge Birss QC. The Claimant’s photograph was of a bright red bus with the Houses of Parliament and Big Ben in black and white in the background and Westminster Bridge, and the river in black and white in the foreground. The photograph used by the Defendant on its souvenir products was also of a bright red bus on Westminster Bridge but was taken from a different angle with a smaller part of the Houses of Parliament and Big Ben in black and white in the background, and the arches of the bridge and the river were not visible in the foreground. The two photographs were therefore not identical but did share a number of common elements.
Judge Birss found that the Defendant’s photograph infringed the Claimant’s copyright in its photograph. Some commentators have expressed surprise at the decision and its potential impact on what is known as the idea/expression distinction. The English Courts have recognised in copyright cases that a line should be drawn between the idea behind a work, which tends not to be protected by copyright, and the expression of that idea, which can be protected.
It had been thought that the general layout of a photograph, particularly where that photograph consisted of a public building or setting, fell more toward the ‘idea’ end of the scale and would not be protected by copyright. A photographer could therefore recreate a photograph taken by another to produce a similar image because it was the underlying idea that was being copied (as it were), rather than the expression of it. The recreated image would not be a ‘copy’ as the taking of the photograph would itself require the necessary creative input to make it ‘original’.
Following the present case, that may have changed and the scope of protection for photographs may have been broadened. Having said that, it appears the Defendant is seeking permission to appeal the first instance decision, so we await with interest to see if the Court of Appeal picks up the case, and whether or not the appellate Court agrees with Judge Birss.