Last week, the interesting ruling of a court in the UK came to my attention. Actually, it caused quite a lot of buzz within landscape photographers community in social as well as serious media. In a nutshell, and very simply put, the judge looked at the two images linked here and decided that the second photograph was a copy of the first one. Looking at it from the landscape photography perspective and with no further details (as many people shared the news this way), it's scary. Bloody scary (do I really need to know each and every photo made from a specific location to be on a safe side??). Here, even the compositions significantly differ (not to mention the ugly effect of partial desaturation that however, as I learnt later, might have had some 'artistic' intention to support sales of souvenirs but this is a different story). I got genuinely interested hence I read the copy of judge's justification. Definitely interesting reading. And I'm glad to declare that the whole story makes the case significantly different. First and foremost, the judge apparently looked at the intention. The defendant has never refused he had seen the claimant's original work before and that he asked an agency to 'create' a similar one on the basis of the original in a strong belief that "claimant's copyright did not prevent them from doing so". Moreover, there was a dispute between the two parties in 2010, in which the defendant breached the copyright of the original creator by using his work on the boxes of tea produced by him. If my understanding was correct, the dispute was settled for the past use of the infringed image but the parties could not agree on royalty for the future. This is what most likely led the defendant to have his own picture created.
Although the composition of the copy is not precisely the same, everything else IS. It became clear that the idea of the red bus against the specific black and white landmarks of London (Big Ben and Houses of Parliament) with removed sky was exactly what the defendant wanted to achieve and as such, it's no different whatsoever from the original work. This is exactly it became famous for when sold on various souvenirs since 2006. And for this reason, the judge decided such the second image of the same character infringes the claimant's copyright. I think it has not been easy for the judge to decide on this one but the post-process (partial black-and-white conversion and the completely removed sky (!), which helps buildings and the bus to transcend) made him believe that the defendant was purely copying the original idea.
What's in there for us, landscape photographers? I see two important things. Citing the judgment: "What ... is the scope of photographic copyright? The question is answered by drawing attention to three aspects in which there is room for originality in photography: i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on; ii) Residing in the creation of the scene to be photographed; iii) Deriving from being in the right place at the right time." In other words, especially point number i) gives "enough room for originality" (and subsequent defense thereafter). But if you remove "light and shade" (i.e. sky in our case) and employ strange "developing techniques" that can't be denoted as 'common' (partial desaturation combined with emphasizing the red bus is quite specific in our case) and then you put it on a souvenir that competes with the same one on the same marketplace, you might be in trouble. But you are safe if you (and that's the second thing) "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. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe. It may or may not have the same appealing qualities as the claimant's image. Even if it did they would be the result of independent skill and labour employed by the independent photographer. Again however that is not what happened."
So unless we blindly and apparently copy somebody else's work including the post-process and if our photographs are results of independent skill and labour whatever they might end up to be, we should never be alleged from infringing the copyright even after such a controversial trial and decision. And it should definitely not stop us looking for inspiration in other photographers' pictures - but keeping our own uniqueness and freedom when creating our own stuff.
One of the advantages of landscape photographers is that we can respond to the what mother nature blessed us with, especially lighting, which is rarely repeating. In early 2008, I travelled to Scotland and spent lots of time studying places and photographs of these places so that I could plan my trip to as many details as possible. But at the end, I kept some of the images seen so deep in my mind that I could not create anything I would say was 'my own' at places like Elgol on the Isle of Skye. I too had similar feelings at Loch Tulla looking for a way to shoot the lake differently from a specific vista I had in mind. I struggled until I noticed an interesting cloud drama up in the hills and went after it leaving the lake behind. After a little walk, I made this photograph that I find very different from what I had seen before and for what I actually had planned for. I certainly employed "the independent skill and labour" to create it. Its originality also resides in a very special light, angle of shot (medium format) and the technique (transparency film). Hence I'm willing to bet my monthly salary there will be no other image similar to this although I was obviously unable to have known all of them shot in this place before I did mine. Because this is, sadly, what some of the people believe the above ruling has been all about...