This is a landmark copyright infringement case where Temple Island Collections successfully sued New English Teas Ltd and the company owner, Nicholas Houghton. The judge held that a photograph of a red London bus against a black and white picture of the Houses of Parliament was similar enough to another photograph of the same subject matter to infringe copyright.
The claimant, Temple Island Collections had produced this image in 2006 and it has been used on souvenirs including mugs, stationary and key fobs ever since.
The defendants produced a similar photograph of a red Routemaster bus on Westminster Bridge with a monochrome background for New English Teas. The question was whether the defendants had copied the claimant’s work and if so, did that copying represent a substantial part of the claimant’s work?
The defendants argued that the claimant’s work was too general to be original and so there could be no infringement. The place at which the photograph was taken was a standard spot, where many tourists take photographs every day. They submitted that the composition of the claimant’s work was extremely ordinary, so that only a duplicate copy of the claimant’s photograph could amount to reproduction of a substantial part.
Judge Colin Birss held in favour of the claimants, Temple Island. He gave the following reasons.
Firstly, the composition of a photograph is capable of being a source of originality. The composition can be the result of skill and labour of a photographer and this can give rise to copyright. The claimant’s photograph was visually significant. The issue was not whether the defendants’ photographer had used common techniques to produce his work, but whether he had used them under the guidance of his own aesthetic sense to create the visual effect. Temple Island Collections’ work was found to be original as it was the result of their photographer’s own intellectual creation. The judge further held that the claimant’s original work had been copied. He found that it was not a coincidence that both images showed the same landmarks in black and white with a coloured red bus and in particular highlighted that the similarity in the image could only have been as a result of Mr Houghton (of New English Teas ) having had sight of the Temple Island Collections’ photograph.
The judge went on to find that the defendants’ work had reproduced a substantial part of the claimant’s photograph. Although the techniques which the claimant had used were simple, the result was a unique picture which was capable of being a source of originality. The claimant’s photograph was not a mere picture – it had been manipulated deliberately by the author.
The decision is surprising given the subject matter of the photographs. The judge held that it was a difficult decision, but decided that a substantial part of the claimant’s photograph had been reproduced by the defendant.