The Copyright, Designs and Patents Act 1988 dictates that copyright subsists in photographs.
It is well known that direct copying of a photograph without permission infringes the copyright in that photograph.
Direct copying includes locating a photograph upon the internet and ‘cut and pasting’ that photograph into marketing materials, or onto a website.
A good example of what can ultimately happen in the case of unauthorised direct internet copying and reuse is given by the JA Coles case. In this case JA Coles (JAC) reused a photograph upon its website without permission of the copyright owner, Getty Images. Getty identified the use and sought payment of an amount in compensation from JAC. The amount sought was disputed by JAC and the matter went to court. Getty won and was awarded in the region of £2,000 in damages. Getty also received reimbursement for a proportion of its costs incurred, a figure well in excess of the amount of damages.
However, photographic copyright can also provide rights to prevent activities which go beyond mere direct copying.
The ‘Red Bus Case’ (Temple Island Collections Ltd v New England Teas Ltd) concerned the extent of photographic copyright. In this particular case, Temple Island Collections (TIC), the holder of copyright in a photograph, sued New England Teas (NET) for copyright infringement, on the basis that they had created (and were exploiting) a photograph that had the same composition as TIC’s photograph, even though there was no direct copying of TIC’s photograph,
TIC’s photograph featured a bus crossing Westminster Bridge against a background incorporating the Houses of Parliament and Big Ben. The image had been digitally manipulated, so that the bus was coloured red and the remainder of the photograph was in black and white. TIC had used the image on some of its souvenir items and also licensed it to third parties.
NET instructed a design agency to create a new image, with the same concept as TIC’s photograph, which they did by combining several different photographs taken by NET. The created image featured a bus on Westminster Bridge against a background of the Houses of Parliament. Similar colouration and perspective as utilised in TIC’s photograph was employed.
In this case the court found that because there were elements common amongst the two images, and because there was a causal relationship between TIC’s photograph and the composition of NET’s image, TIC’s copyright had been infringed even though their photograph had not been directly copied.
Key points for copyright in photographs
- When you reuse a photograph which you don’t own always get permission.
- Be prepared to pay to reuse photographs,
- Don’t replicate other people’s photographs.
- When someone takes photographs for you, make sure they assign the copyright to you.
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