In Temple Island Collections Ltd v New English Teas Ltd [2012] EWPCC 1 (12 January 2012), Judge Birss QC found that an image belonging to New English Teas infringed the copyright subsisting in a digitally manipulated photograph of a London scene created by Temple Island Collections

BACKGROUND

TIC claimed to be the owner of copyright subsisting in a black and white photograph of a red bus travelling across Westminster Bridge:

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Once the photograph had been taken, it was manipulated on a computer using Photoshop software. For example, the red colour was strengthened, the sky was removed, the rest of the image was changed to monochrome except for the bus, and the image was stretched. The whole endeavour, including taking the original photograph, took around 80 hours.

The image was published in February 2006 and was used by TIC on various souvenir products. The image became famous in TIC’s industry and a number of other organisations licensed it from the TIC, including Historic Royal Palaces.  

NET was aware of TIC’s famous image; in fact, NET had previously settled an action concerning one of its images, which TIC claimed infringed its copyright.  

In this case, NET took four photographs—three of different aspects of the Houses of Parliament and one of a red Routemaster bus—which were then combined and manipulated to produce the photograph in question.

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TIC brought proceedings against NET for copyright infringement. NET denied infringement, arguing that TIC could not use copyright law to give itself, effectively, a monopoly right over monochrome images of the Houses of Parliament and a red bus.

DECISION

SUBSISTENCE OF COPYRIGHT

HHJ Birss found that copyright plainly subsisted in Temple Island’s photograph as it was indeed the author’s own “intellectual creation” and had involved skill and labour, both in terms of the choices relating to the basic photograph itself (the motif, angle of shot, light and shade, illumination, and exposure) and also in terms of the post-production work:  

The fact that it is a picture combining some iconic symbols of London does not mean the work is not an original work in which copyright subsists. The fact that, to some observers, icons such as Big Ben and a London bus are visual clichés also does not mean no copyright subsists. It plainly does.

INFRINGEMENT

HHJ Birss found that NET had indeed copied TIC’s photograph: NET had access to TIC’s work and there were obvious similarities between the images.  

The question was, therefore, whether a substantial part of TIC’s work had been reproduced. The issue turned on a qualitative assessment of the reproduced elements. In terms of composition, the reproduced elements amounting to a substantial part included the Routemaster bus on the right of Westminster bridge, the riverside façade of the Houses of Parliament, the substantial amount of sky, and the top of the bus was roughly the same height as the façade of the Houses of Parliament. As for visual contrast features, the reproduced elements consisted of the bright red bus against a monochrome background and the element of the blank white sky, which created a strong skyline.  

Two factors that influenced the judge’s decision were: 1) the nature of TIC’s image, and 2) the collection of other, similar works relied on by NET. On the first point, TIC’s image was not “a mere photograph”. Its appearance was the product of deliberate choices and deliberate manipulations by the photographer. On the second point, the collection of other works had actually worked against NET as it emphasised how ostensibly independent expressions of the same idea can turn out differently.

HHJ Birss therefore found that NET’s image infringed TIC’s original photographic work.  

COMMENT

In what the judge described as a “tricky” area of law—the scope of protection for images manipulated by post production software—this case will cause some controversy as it appears to widen the scope of copyright protection in the composition of visual images.