Can the copyright in a photograph be infringed by shooting a similar photograph? The answer to this question has generally been thought to be yes. In the first UK judgment directly on this point the Patents County Court has confirmed this.
His Honour Judge Birss QC decided that a 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 copyright.
The decision is perhaps surprising, given the commonplace subject matter of the photographs. The judge himself admitted that he found it a difficult question, but in the end he decided that a substantial part of photograph 1 had been reproduced in photograph 2.
The Temple Island case is likely to herald more claims of this kind. The judgment should be studied by anyone imitating an existing photograph or commissioning a photograph based on a similar photograph. “Inspiration” and “reference” are fine in themselves, but there is a line between copying ideas and copying the original expression of ideas which is often a difficult one to draw.
The monetary value of most photographic copyright claims is low. The cost of court action makes them uneconomic to pursue. This is all going to change soon. The UK government has accepted a recommendation in the Hargreaves Report that the Patents County Court (likely to be re-named the Intellectual Property County Court) should operate a small claims procedure for intellectual property claims under £5,000. Similar proposals are now being considered in the US in an effort to make the courts more widely accessible in the majority of copyright infringement cases which don’t (even in the US!) involve telephone number damages.