UK Court Finds Infringement of Copyright in a Photograph by a Different Photographer

In Temple Island Collections Ltd v New English Teas Ltd, [2012] EWPCC 1, Judge Birss of the England and Wales Patents County Court found that a photograph of a red bus in an otherwise black and white photograph with the Houses of Parliament behind the bus infringed copyright in a significantly different photograph containing these same elements. The colour photographs by both the claimant and defendant are reproduced at the end of the judgment. The claimant’s photograph has been used extensively on souvenirs, such as mugs and stationery. The photographer spent about 80 hours creating the photograph, including time spent using PhotoshopTM to edit it. The defendant’s photograph was used on tins and cartons of tea made by the defendant. The creator of the defendant’s photograph was familiar with the claimant’s photograph and it was clear he attempted to change elements of the photograph in an effort to avoid infringement. It was also clear that the defendant copied certain elements of the claimant’s work, namely a red Routemaster bus on Westminster Bridge, driving from right to left with Big Ben on the right of the bus, the riverside facade of the Houses of Parliament behind the bus, few people, and a substantial amount of blank white sky, with all elements of the photograph being black and white other than the bus. However, many elements of the defendant’s photograph were distinctly different from the corresponding elements of the claimant’s photograph, such as the angle from which it was taken and the position of the bus. The key question was whether the copied elements constituted a “substantial part” of the claimant’s work under copyright law. In what appears to have been a close call, Judge Birss found that the copied elements did constitute a substantial part of the claimant’s work such that the defendant’s photograph infringed the claimant’s copyright in its photograph. The visual contrast created by using a bright red bus, black and white buildings behind the bus and a blank white sky was a key consideration. Combined with the fact that the same type of bus was used and the same buildings were used in the background, the judge found this to be sufficient to constitute a “substantial part”. Summary by: Tom Feather