Temple Island Collection, a UK souvenir company, recently successfully sued tea company New English Teas (NET) in the case of Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1 for copyright infringement after NET used a photo of a red London bus crossing Westminster Bridge on tea packaging.

Judge Birss QC decided that NET's photograph of a red London bus against a black and white background of Big Ben and the Houses of Parliament, with a blank sky, was similar enough to another photograph of the same subject matter to infringe Temple's copyright.

The case is unusual as in no sense was there any "photocopying" or facsimile style reproduction of Temple's photo. Temple produced its photo in 2005. Temple's photographer stood where many tourists also stand with their cameras to take pictures of the bridge to get the Houses of Parliament and Big Ben in the background. In contrast, NET took three photos and combined them with a stock image of a Roadmaster bus to produce its final image. The Temple photo and the NET photo "see" the view from different angles and were taken on different days. One image has a lot more detail in the foreground than the other. However in both photos the bus is shown in red, travelling in the same direction and against a black and white background. The judge held that NET had reproduced a substantial part of Temple's photograph.

The judge considered that NET knew about Temple's existing photo and had deliberately created its photo to avoid infringing Temple's copyright.  

The judge said, "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". On this basis the judge decided that the similarity of the "visual contrast" features of the red bus and monochrome background in the NET photo infringed the "intellectual creation" in Temple's photo. The Court believed there were a myriad of ways a bus could be portrayed in front of the Houses of Parliament without inappropriately using Temple's image.

This decision seems to expand the ways you might infringe the copyright in another photographer's photo where you portray the same subject matter. It seems to suggest you can infringe copyright in a photo by using the idea expressed in it. Traditionally copyright has been thought to protect only a photographer's expression of an idea, not the idea itself. What if two photographers are standing next to each other and snap the same celebrity opening the same supermarket? Won’t they depict the same idea?

Interestingly, Judge Birss did say NET could have sent a photographer to Westminster and taken a picture which includes at least a London bus, Big Ben and the Houses of Parliament and no such image would have infringed Temple's copyright. Maybe NET just went too far in an effort not to infringe.