Temple Island Collections Ltd v. New English Teas Ltd & Nicholas John Houghton, UK (2012)

In a recent ruling, the Patent County Court found that a photograph of a red Routemaster bus travelling across Westminster Bridge with a background of the Houses of Parliament and the bridge shown in black and white is copyright infringing. The Court found that, despite the fact that some compositional elements differ, the defendant's photograph shared visually significant elements with the claimant's work.

The claimant's managing director took a photograph in August 2005 with a view to create a single, modern and iconic image of London. For many years, he was taking pictures of the river and the Houses of Parliament so he knew exactly where to stand to be able to capture a red bus crossing the Wesminster Bridge, the river and the Parliament. Drawing inspiration from a technique used in the film Schindler's list in a different context, he manipulated the photograph by use of Photoshop to create a strong contrast: the red bus would stand against a black and white background. To achieve this effect, he strengthened the red colour of the bus, made the rest of the image monochrome, removed the sky and some of the pedestrians and stretched the original image to change its perspective. The resulting image was published on February 2006 and has been used by the claimant on mugs, key fobs and other souvenirs, having become famous in the claimant's industry.

See in this respect some of the items in which the picture featured below:

Photograph of  the "Red London Bus" Pencil Case with Jelly Beans (where the photograph of the plaintiff is featuring)

Photograph of  the "Red London Bus" Royal Toffees

Photograph of  a"Red London Bus" mug

Photograph of  the "Red London Bus" tea towel

            

Mr Houghton's company was engaged into supplying tea to customers on worldwide basis and its best selling packs of tea were bearing images of English landscapes, including images of London. The allegedly infringing work in this case was the image of a red Routemaster bus with Big Ben and the Parliament in the background in tones of grey. The final image, as featuring in the tea packaging, comprised of a compilation of photographs that Mr Houghton had taken; Sphere Design combined and manipulated those images of the Big Ben and the Parliament and also added an iStockphoto image of a Routemaster bus.

Photograph of  the "Bus & Big Ben - English Breakfast Tea" (where the picture of the defendants is featuring)



Photograph of  the "Bus & Big Ben - English Breakfast Tea"





Photograph of  the "New English Teas: Best of Britain"


Photograph of  bottom side of the packaging of  "New English Teas: Best of Britain"






Photograph of  the packaging of "New English Teas: Traditions of England" 



The Patent County Court found that the defendants' image infringed the copyright in the claimant's photograph by copying a substantial part of it. The determination of what a substantial part is involves a qualitative rather than a quantitative examination and this requires an assessment of the elements of the work that have a visual significance. What is visually significant in artistic works is not the skill and labour that has been invested in their creation but the final output of this creative process. The fact that the techniques used are simple or commonplace is immaterial; what matters is that the artist used those techniques under the guidance of his own aesthetic sense to create the visual impact concerned. The elements that have been copied include a key combination of the visual contrast features used in the claimant's photograph with the composition of the same scene, irrespective of the fact that some important compositional elements are absent. No defence of independed creation could be substantiated since there was no evidence of independent design in the defendants' work.

Full citation: Temple Island Collections Ltd v New English Teas Ltd & Nicholas John Houghton [2012] EWPCC 1

Postscript: Pictures sharing a very similar concept, but which are not identical to the plaintiff's photograph, feature in souvenirs sold at various London shops. Are they infringing too?

See for instance photographs of some of these below:

 

Creation Records v News Group Newspapers, UK (1997)

This case was mainly concerned with the issue of subsistence of copyright. A freelance photographer took a picture during an Oasis photo-shoot of the scene that was chosen to feature in their album cover. He published and sold it as a poster in the Sun newspaper. The musician who had arranged the scene together with the group's record company and licensee brought proceedings for copyright infringement and breach of confidence and moved for interlocutory injunction to restrain further publication until trial.  

Photographs of the defendant's picture as featuring on the Sun newspaper on April 19, 1997

Photographs of the plaintiffs album cover and CD. The album was released on August 21, 1997.  

Lloyd J held that, while there was an arguable case for breach of confidence, there was no copyright infringement. The arrangement of the scene was merely an assembly of ‘objets trouvés’ and, from a copyright perspective, it was neither a sculpture nor a collage. Since copyright did not subsist in the arrangement of these objects, the photograph was neither a copy of a copyright work nor a copy of the official photograph; it was merely a shot of the same scene.

To Lloyd J,

“…[i]f the subject matter is not itself a copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other…two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are… ”

What is more, Lloyd J found that the composition of the scene was intrinsically ephemeral to qualify for copyright protection.

Full citation: Creation Records Ltd. v News Group Newspapers Ltd. [1997] EMLR 444