Charles Swan is one of the UK’s top intellectual property lawyers. His opinions on copyright and court judgements are to be taken seriously. Cory Doctorow…well, perhaps not so much.
Recently His Honour Judge Birss QC found in favour of Justin Fielder and Temple Island in the company’s claim that Nicholas Houghton and New English Teas had breached copyright in production and publication of a photograph [above right] of a London bus that had been Schindlered to within an inch of its life. Temple Island’s case was that the New English image was an obvious copy of their own Schindlerfest [above left] from a few years before. But although similar in many ways the two are entirely separate images: so where was the infringement?
Swan described the ruling as “ perhaps surprising”, a phrase that can have myriad meanings coming from a lawyer. But for the Interweb it meant just one thing: the sky was falling. “Photographers Face Copyright Threat After Shock Ruling”, screamed Amateur Photographer. “Create A Similarly Composed Photo In The UK And Risk Copyright Infringement”, howled Petapixel. According to these and others, anyone in the UK taking a photograph similar to an existing photograph now risked ending up in court for breach of copyright. To the most deranged, “taking a photo in the same place where someone else took a photo can now be a crime.”
None of this was true, but with crashing inevitability the most misleading and hysterical analysis came from Doctorow at Boing Boing. Eager not to let the facts get in the way of a good story, or perhaps because he’d neglected to actually read the judgement he was commenting on, Doctorow took aim at the “insane” and “bizarre” ruling and let rip:
“If a Reuters and an AP photographer are standing next to each other shooting the Prime Minister as he walks out of a summit with the US President, their photos will be nearly identical. Will the slightly faster shutter on the AP shooter’s camera give him the exclusive right to publish a photo of the scene from the press-scrum?”
“The judge here ruled that the idea of the image was the copyright, not the image itself.”
“This creates a situation where anyone who owns a large library of photos — a stock photography outfit – can go through its catalog and start suing anyone with deep pockets: ‘We own the copyright to “two guys drinking beer with the bottoms of the mugs aimed skyward!”’It’s an apocalyptically bad ruling, and an utter disaster in the making.”
Doctorow’s hysteria is of course unfounded. Just one paragraph from Birss’ ruling comprehensively demolishes Corky’s claims:
“The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr. Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Such an image would not infringe.”
So why did the defendants go to such “elaborate lengths” and why did Birss rule the way he did? Simple: the combatants had history. New English had previously infringed a Temple Island image and settled in court. Temple Island offered to license an image to New English, but the latter declined. Instead they set out to produce their own image based on that of Temple Island: make it as close as possible, went the thinking, but just different enough to avoid infringing. That’s a judgement call, and New English got it wrong.
Helpfully Birss even spelled out exactly how they’d got it wrong. If New English had never seen the Temple Island image and had produced even an identical image independently they would have been in the clear. If New English had scoured the web for similar images for inspiration and produced the image they actually did, they still would probably have been ok. But instead they were interested only in the Temple Island image, copying it as closely as they – wrongly – felt safe to do. And in so doing they breached Temple Island’s original expression of an idea.
Note the “original expression” bit. Contrary to what Doctorow, Techdirt and numerous others tried to claim, Temple Island hadn’t suddenly claimed copyright of London landmarks, Schindlered or not. They simply objected to another company – whose products incidentally sell alongside theirs in tourist outlets – studying one of their most marketable images, then setting out to replicate it as closely as possible.
In other words, the judge reached his conclusion by employing a commodity clearly lacking at Boing Boing, Techdirt and elsewhere: common sense.
Stop me if this sounds familiar. Professional photographer submits staged or manipulated image; newspaper or agency publishes image; reader spots manipulation; photographer is fired, much hand wringing ensues.
At first glance the weekend dismissal of long-time staff photographer Bryan Patrick by the Sacramento Bee appeared to follow the template established by Adnan Hajj Reutersgate, the Brian Walski Los Angeles Times fiasco, and numerous others. There was however one difference. The Hajj and Walski incidents concerned major news stories in war zones: Patrick’s photograph was of a bird eating a frog at a wildlife festival.
You can of course adopt the principled position – as the Bee has – that the subject of the photograph is irrelevant, and that any manipulation is forbidden in photojournalism. But if so the Bee – and you – had better start clearing bookshelves. Those precious monographs by Capa, Smith, Khaldei et al? Packed with staging and darkroom manipulation: many of the most historic and respected names in photography would get short shrift at the Bee.
You can also take the fundamentalist position – as the Bee has – that any photo manipulation, no matter how minor, is such a heinous crime that it inevitably merits only the maximum possible sentence, dismissal of the perpetrator. In that case the Bee – and you – presumably take a similarly hard-line stance regarding other more serious crimes. You’ll be in favour of execution for murderers, the chopping off of hands for pickpockets, castration for copyright infringers, that sort of thing.
What Patrick did was undoubtedly wrong, but perhaps worse than that, it was stupid. It should by now be painfully obvious to even the dimmest photographer that if you fake in Photoshop you will be caught: the whole world is watching, and somebody somewhere is waiting to pounce. And whatever they might claim, such incidents often put the news organisation concerned in a rather comfortable position. Closure – at least for the publisher – is easily achieved with an apology packed with references to ethics and core values and branding the perpographer a fraud. “We too have been betrayed dear reader,” runs the narrative, “but the guilty party has been punished: you can trust us.”
This conveniently glosses over one point obvious to anyone who has ever worked in a newspaper, but perhaps less so to the readers the Bee is addressing. Patrick did not publish the doctored image all on his own: he will have submitted a number of images to the Bee photo department, who will have made the final choice for publication. One might expect the photo department to notice any skullduggery: after all, that is in part their job, and Patrick’s handiwork was relatively crude and easy to spot. But the manipulated image sailed by the photo department: the Bee was apparently only alerted by that most reliable of sources, an anonymous e-mail from a reader.
That begs two questions. Does the Bee employ any photo editors who are awake and in possession of functioning eyeballs? And what steps has the paper taken against those editors who approved publication of the Patrick photo?
It would be interesting to hear the response to those questions, but we’re unlikely to get any. The Bee, having placed all the blame squarely on the photographer, is apparently now refusing to comment further. All in all, a neat way to evade any responsibility.
