Photos enjoy copyright. But it would be absurd if I could take a
snapshot of Big Ben and then sue every Nikon-carrying Japanese
tourist who took a photo that happened to be similar to mine. But
what if I put some real effort into my photo? There was an
interesting decision in the UK recently involving something
that's all the rage now – black and white photos of some
iconic city scene, with one feature being bright red. In this case,
the photo was of a bus driving over a bridge, with Big Ben and the
Houses of Parliament in the background. All in black and white,
except for the bus which was bright red. The owner of the copyright
in one such photo (there are in fact many and, as a pedant of my
very close acquaintance points outs, some contain elementary
errors, like a bus going south over the river marked
'Piccadilly Circus') sued a photographer who came up with
something that was very similar.
Common features included the following: the bus was a
'Routemaster'; the bus was on Westminster Bridge; the bus
driving from right to left with Big Ben on the right of the bus;
the riverside facade of the Houses of Parliament formed part of the
photo; some people were visible but there was no other traffic; and
a substantial amount of sky was visible. The court rejected the
defence that photographer 1 was using copyright law to get a
monopoly in black and white images of the Houses of Parliament.
Instead, it held that there was an infringement because
photographer 2 could not prove that he hadn't copied photo 1
– he admitted having seen photo 1, and there was no
suggestion that he had ever seen any other similar photos.
Interesting stuff! It's often said that to enjoy copyright, a
work must be original. Originality in the context of copyright
doesn't mean that it has to be unique or clever, simply that
some skill and labour must've gone into its creation. To get
copyright in a photo of what is essentially a public building,
you'll need to add quite a bit of creativity, in terms of scene
creation, light and shade, and shot angle (photographic jargon,
I'm assured!). But it can be done!
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