Temple Island Collections Ltd v New English Teas Ltd & Anor  EWPCC 1
A recent case as to copyright infringement involved the Claimant’s photograph of a red London bus with the Houses of Parliament and Big Ben in black and white in the background and Westminster Bridge, and the river in black and white in the foreground.
The Defendants photograph used on its souvenirs was also of a red London bus on Westminster Bridge but was from a different view point showing a smaller part of the Houses of Parliament and Big Ben in black and white in the background, and the arches of the bridge and the river were not visible in the foreground. The photographs were not identical but did share a number of common elements.
Copyright subsists in original artistic works (s1(1)(a) of the Copyright Designs and Patents Act 1988). “Artistic work” means “a graphic work, photograph, sculpture or collage irrespective of artistic quality” (s4(1)(a)). “Photograph” means a “recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film” (s4(2) of the 1988 Act).
At trial it was common ground that the impact of European Union law meant that the judgment of the CJEU in the Infopaq case (C-5/08  FSR 20) was such that copyright may subsist in a photograph if it is the author’s own “intellectual creation”.
HHJ Birss QC held that the copyright work was original resulting from his intellectual creation, his choices as to the basic photograph light and shade, illumination and exposure ,of angle of shot and field of view and the work he carried out to manipulate the image. He thought it irrelevant that the photo contained iconic images and visual cliches that didn’t mean that copyright didn’t subsist.
The judge found that the Claimants’ images had been copied. He concluded that the Defendants’ work did reproduce a substantial part of the Claimant’s work.
HHJ Birss QC concluded that the Defendants’ work infringed the Claimant’s copyright.
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