Factual and Procedural Background
This case concerns an action for copyright infringement involving a black and white photograph of a red bus travelling across Westminster Bridge. The Plaintiff claims to own the copyright in this photograph, which has been used on various souvenirs. The Defendant, a tea producer, created an image alleged to infringe the Plaintiff’s copyright. An earlier dispute regarding a first allegedly infringing image was settled, but the Defendant produced a second image with similar iconic London landmarks and a red bus, which is the subject of this litigation.
The Plaintiff’s photograph was taken in 2005 by the Plaintiff’s managing director and involved significant manipulation, including enhancing the bus’s red color, removing the sky, converting most of the image to monochrome, removing people, and adjusting perspective. The image was published in 2006 and has been used commercially on various products.
The Defendant’s image was created using photographs taken by the Defendant and a stock photo of a Routemaster bus, combined and manipulated by a design company. The Defendant denies infringement, arguing that the image was independently created and that the Plaintiff cannot monopolize a common London scene.
The trial involved testimony from the Plaintiff’s photographer and the Defendant’s director, both of whom gave evidence fairly and honestly. The dispute centers on whether the Defendant’s image reproduces a substantial part of the Plaintiff’s original photographic work.
Legal Issues Presented
- Does the Plaintiff’s photograph qualify as an original artistic work protected by copyright under the Copyright Designs and Patents Act 1988?
- Has the Defendant infringed the Plaintiff’s copyright by reproducing a substantial part of the Plaintiff’s photograph?
- What is the scope of originality and substantiality in photographic copyright, particularly regarding manipulation and composition?
- Does the Defendant’s second image reproduce a substantial part of the Plaintiff’s work, considering differences in composition and visual elements?
- Is the cropped portrait version of the Defendant’s image an infringement distinct from the landscape version?
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff’s photograph is original and protected by copyright as a photographic work involving skill, labour, and intellectual creation.
- The Defendant’s image reproduces a substantial part of the Plaintiff’s work, including the key visual contrasts and composition.
- The similarities between the images are not coincidental and demonstrate copying.
- The Defendant cannot monopolize the idea of London landmarks, but the specific expression in the Plaintiff’s photograph is protected.
- The cropped portrait version of the Defendant’s image also infringes as it reproduces a substantial part of the Plaintiff’s work.
Defendant's Arguments
- The Defendant denies infringement, asserting that their image was created from independent photographs and a stock photo, not by copying the Plaintiff’s work.
- The Defendant argues that copyright protects expression, not ideas, and that the Plaintiff’s composition is ordinary and not protectable beyond facsimile copying.
- The Defendant suggests that other publicly available images of London landmarks and red buses could be the source of elements in their image, not the Plaintiff’s photograph.
- The Defendant contends that the Plaintiff’s copyright should not extend to a monopoly over a common London scene with a red bus.
- The Defendant submitted that the cropped portrait version of their image lacks significant visual elements present in the landscape version and may not infringe.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Infopaq (C-5/08) [2010] FSR 20 |
Copyright subsists in a photograph if it is the author's own intellectual creation. |
Accepted as establishing the EU standard for originality in photographs. |
| Painer (C-145/10) |
Confirming the Infopaq standard that copyright requires intellectual creation by the author. |
Confirmed no further submissions were necessary; consistent with Infopaq. |
| O (Peter) v F KG [2006] ECDR 9 (Austrian Supreme Court) |
Photographs are protected if they reflect the photographer’s personality via choices of motif, angle, illumination, etc. |
Used to illustrate the concept of intellectual creation and originality in photography consistent with UK law. |
| Bauman v Fussell (1953) [1978] RPC 493 (CA) (dissenting judgment) |
Originality can derive from being in the right place at the right time. |
Referenced but not determinative; noted as dissenting and questioned. |
| Antiques Portfolio v Rodney Fitch [2001] FSR 345 |
Distinguishes representational photographs from other artistic works regarding originality. |
Referenced in discussion on originality but not resolved in this case. |
| Krisarts v Briarfine [1977] FSR 557 |
Originality in views of well-known subjects lies in choice of viewpoint, balance, and features introduced. |
Applied to emphasize careful attention to details in commonplace works. |
| Designers Guild [2000] 1 WLR 2416 (HL) |
Defines substantial part in copyright as a matter of quality, not quantity; involves identifying copied features and their significance. |
Formed the basis for assessing substantiality and infringement in this case. |
| Gross v Seligman 212 F 930 (1914) |
Copying a photograph does not require facsimile reproduction; recreating the scene or substantial part suffices. |
Supported the principle that photographs are not treated differently from other artistic works regarding reproduction. |
| Interlego v Tyco [1988] RPC 343 (Privy Council) |
Originality involves skill and labour that is visually significant. |
Applied to distinguish between effort leading to a work and the visually significant product protected. |
| Temple Island v New English Teas [2011] EWPCC 19 |
Clarified that the Defendant denies infringement and does not advance independent design; intention irrelevant to infringement. |
Referenced for procedural clarity and scope of defence in this case. |
Court's Reasoning and Analysis
The court began by confirming that the Plaintiff’s photograph qualifies as an original artistic work protected by copyright under the 1988 Act, as amended and interpreted in light of EU law. The originality derives from the photographer’s intellectual creation, including choices of motif, angle, lighting, and post-photographic manipulations that contribute to the image’s aesthetic quality.
The court rejected the Defendant’s attempt to minimize the Plaintiff’s skill and labour, emphasizing that copyright protects the visually significant expression, not merely the effort or the use of common techniques. The court noted that the Plaintiff’s work is not a mere photograph but a photographic work shaped by deliberate artistic choices and manipulations.
Regarding infringement, the court found that the Defendant’s work reproduces a substantial part of the Plaintiff’s work. Despite differences in composition and some omitted elements, the Defendant’s image copies key visual contrasts and compositional features, such as the red bus against a monochrome backdrop and the blank white sky. The court concluded that these elements, taken together, constitute a substantial part of the Plaintiff’s original work.
The court dismissed the Defendant’s reliance on other publicly available images, finding that these did not serve as independent sources for the elements in the Defendant’s image, which was created with knowledge of the Plaintiff’s work.
The court also addressed the Defendant’s cropped portrait version of the image, ruling that it reproduces a substantial part of the Plaintiff’s work despite omitting some minor features. The cropping discarded only insignificant parts, and the essential visual contrasts and composition remained intact.
The court emphasized that intellectual property rights, including copyright, inherently confer a limited monopoly, which is properly circumscribed by law. The Defendant’s argument that the Plaintiff’s claim would create an unwarranted monopoly was rejected.
Holding and Implications
The court held in favour of the Plaintiff, finding that the Defendant’s second image infringes the Plaintiff’s copyright by reproducing a substantial part of the original photographic work.
The cropped portrait version of the Defendant’s image also infringes for the same reasons.
The direct effect of this decision is to prohibit the Defendant from using the infringing images on their tea products. The court did not establish any new legal precedent but applied established principles of copyright law to photographic works and infringement.