When is “substantially similar” a matter of copyright infringement?

There are two articles worth reading on this copyright case: DPreview.com’s, “Similar, but not copied, image found to breach copyright” and the one written (with loads of typos!) by Holger Mette, “UK Copyright Case, Different, but Same-Same”. Mette’s article articulates some facts that are not mentioned in the DPreview article.

For instance, Mette tells us that the original Justin Fielder photograph (top photograph) was used without permission by a tea company. When Fielder approached the company about unauthorized use and then subsequently filed suit, the company withdrew the image from production and then proceeded to hire Nick Houghton to create a “similar” image (bottom photograph).

It was a deliberate act of taking the very specific elements from Fielder’s photograph and creating a montage of elements to reproduce an image that was to intentionally look similar — this alone would seem to warrant a case of copyright infringement. (But, the Court’s decision to rule that it was a case of copyright infringement was based on other criteria.)

Had someone stood at the same spot as Fielder and captured all the elements in the shot — the red bus, Big Ben in the background, a white sky, and then manipulated the image in Photoshop to render the monochromatic background, and had they not seen Fielder’s shot, it is my understanding that they would not be guilty of copyright infringement. Case and point: think of how many substantially similar shots there are of Michelangelo’s, Statue of David, taken from the same location, same angle, same time of day, same lighting, possibly the same number of tourists wearing red sweaters looking up at David, etc. (I think this would then also touch on the issue of public domain … but that is another discussion for another time.)

Another case:

Following is a seemingly similar case with a different outcome — this case was that of the book cover for Midnight in the Garden of Good and Evil versus the use of a similar image for the film version of the book and its poster. Here again, there were instructions to create a similar image, but the Court ruled that it was not copyright infringement. Following is a summary of the case from www.advertisinglawyer.ca. And, here is the actual Court Document.

The United States case involves the movie, Midnight in the Garden of Good and Evil, based on the John Berendt book of the same title. Those who have seen the book will readily recall Jack Leigh’s jacket photograph of the sculpture in Savannah’s Bonaventure Cemetery, known as “the Bird Girl.” The sculpture was sculpted in 1938 by Sylvia Shaw Judson, and was placed at that time in the Lucy Trosdal family burial plot.

In 1997, when Warner Bros. was in the midst of filming, Leigh asked if they would be using his photograph in connection with the film’s publicity. Warner Bros. declined the invitation, saying that they would be creating their own images of the Bird Girl.

Warner Bros. obtained permission from Judson’s heirs to make a replica of the sculpture, applying a weathered finish to it. They encountered problems in obtaining permission from the Trosdal family to place the replica in their plot, and decided to place it in a different location within the cemetery. When all was said and done, the Warner Bros. photograph of the Bird Girl evoked a resemblance to Leigh’s photograph, and both had the same eerie look and feel. Leigh sued for copyright infringement.

Since there is no copyright in an idea, only in how one expresses that idea, the use of the same subject matter in two works does not in and of itself result in an infringement of copyright. Two people can therefore photograph the same subject. The protection granted to a photographer is in the posing of the subject, lighting, timing, the shading that evokes a desired expression, the selection and arrangement of costumes, draperies and accessories, the angles photographed from, and other such variants.

Based on these principles, the court first decided that Leigh was not entitled to copyright protection of his choice of subject matter, namely the Bird Girl in Bonaventure Cemetery. The court also said that since the sculpture had been in the same position in the Trosdale plot for some fifty years, Leigh could not claim originality in the background for his photograph. Nor could Leigh claim protection for the pose or expression of the statue, since he did not select these or alter the statue’s physical appearance in any way.

The Court also decided that Leigh could not claim that the eerie or spiritual mood of the photograph was capable of protection, saying:

“statues in cemeteries are often photographed in a manner evoking an eerie or spiritual mood and thus these moods can be said to flow naturally from the subject matter… .”

Leigh contended that the statue represented the idea of the final judgment on the main character in the book. To this, the Court said:

“the idea of a forlorn cemetery statue representing final judgment cannot be protected by copyright. (Leigh’s) original expression of that idea, that being the elements of his photograph over which he exerted original creative control can be protected. It is these elements that that must be compared…and not the ideas that they convey.”

The Court then looked at the copyrightable elements in Leigh’s photograph (lighting, shading, timing, angle, background scenes, etc.) and noted that the Warner Bros. photograph was set farther back, and was slightly off-centre. More headstones, and different headstones, were visible, background trees were much larger, light streams were different and the Warner Bros. photograph had a different tint.

The Court concluded the case this way:

“(Leigh) may be correct in asserting that if it were not for his idea, the Bird Girl would not be associated with (the film). Nevertheless, copyright law does not protect his idea. Warner Bros.’ expressions of that idea are original and different from (Leigh’s). The only similarity between the images are of the sculpture in the cemetery. This aspect of the images, however, is not copyrightable.”