First saw this posted on DPR and originally reported in Amateur Photographer Magazine. Not the type of image you'd think would be considered a copyright infringement.

http://www.amateurphotographer.co.uk/news/photographers_face_copyright_threat_after_shock_ruling__news_311191.html

As a lawyer and photographer, I have been expecting a decision like this to happen. The legal standard here in the US for copyright infringement is proof of access to the copyrighted work and substantial similarity between the two works. I understand that many photographers attempt to imitate others but it can be found to be copyright infringement if the photos are too close.

That having been said, I think the decision in this case is wrong as the photographs were taken from different perspectives and the elements of a black and white picture of big ben and a red bus should not be the end of the inquiry. I think the end result is wrong as they are not substantially similar but the legal theory behind the decision is sound.

I understand why we have this law but IMHO these two pictures are quite a bit different. Yes, they are similar as to the red bus and the B&W, but completely different otherwise. I hope this one gets overturned.

It seems ridiculous to copyright a technique or style.

If only one or two elements or creative ideas in the images were the same then maybe he could have gotten away with it, but he had four of them the same - making the background B&W, leaving the bus red, making the bus the main subject, and using the same building as a background. If you were the original photographer, you'd probably say the second guy copied. And I'd agree with you.

If these two photographers had no history together, then there is no way I would agree with that statement. There are simply too many photographers clicking away to say this is copyright infringement. Those buses and buildings have been photographed to death, so I it is very likely overlap in style would occur. I would even go so far to say this isn't even that original an idea.
The fact that there was a history of conflict and prior concerns over copying lends credibility to the judgement, otherwise it's ridiculous, IMO of course!

Would this judgement really apply to nature photography? I'll outline a real situation that occurs all the time.

An eastern screech owl has his favorite hole. He stays there year round. Photographer A takes a photograph on September 1st. Photographer B comes along and takes basically the same picture 3 weeks later.

Is photographer B infringing on photographer A's copyright? The screech owl is going to stay in the exact same spot, day after day, and it is a small enough subject that only so many pictures can be taken before they will all look more or less exactly like one another.

If this case is a precedent, then I would say the first person to publish or establish copyright wins.

Which is a load of bull hockey. How may amature photographers don't actually jump thru the hoops to have their images copyrighted with the copyright office. In most cases... unless you're making money off your photography most folks wont shell out the $$$ to have their images copyrighted.

Using the precedent above... let's say that 3 years ago I took a stunning closeup of a cottonmouth. Someone else liked it so well they decided to try and duplicate it. They achieve the look and then shell out the funds to have thier image copyrighted. Now If I am understanding this correctly... I would be in violation because I didn't copyright mine first. Which is a load of bull!

If this is really what this world is coming too... then why even bother.

Before commenting it may be best to read the judgement in whole (yes it's a bit of a slog but is in fairly plain english):

http://www.bailii.org/ew/cases/EWPCC/2012/1.html

A couple of points:

The defendant had been using a copy of the the image previously and this case was settled, they created the subject image specifically to avoid paying royalties to use the original. The judgement says:

"defendants deny infringement but they do not advance a case of independent design"

"The whole point of this case is that Mr Houghton and his company wish lawfully to produce an image which does bear some resemblance to the claimant's work. The inference that I draw is that Mr Houghton sought out this other material after he had decided to produce an image similar to the claimant's. He found examples of common elements in various different places. That does not avoid a causal link. If Mr Houghton had seen Mr Fielder's image, decided he wanted to use a similar one, found the Rodriguez or Getty photographs and put one of those on his boxes of tea, there would be no question of infringement. Those images are not causally related to Mr Fielder's, they are independent works. But that is not what happened. At best the defendants used these other images to show that certain individual elements in Mr Fielder's work can also be found elsewhere. That does not make those different sources the actual origin of an element in the defendants' image. I reject the submission that the other similar works acted as a relevant independent source for the defendants. "

The argument is that they basically copied the concept to avoid infringement basically they made the copy because they wanted to use the original but could not or would not negotiate royalties. Right or wrong they are saying it's more than just comparing the images.

But the point is... they took the time to go out and get their own image vs using someone elses. And now they are being punished because the saw something they liked and decided to try and copy the techniques.

Haven't we all done that? Saw something we liked in an image and tried to go out and create it ourselves.

I appeared on TWIP tonight to discuss this case. The fact that the infringer didn't pay the original photographer to license his photo but tried to recreate the photo likely is what let the court to find infringement. It also was important that the photo did not just capture the natural scene. The plaintiff did significant Photoshop work to get the final image. In sum, the infringer was a bad actor.

I think the key issue here is their history, otherwise the images are too different in my opinion to be true copyright infringement. Desaturating a background and leaving the subject in color isn't exactly a new idea. Maybe the first to publish that style should argue copyright infringement??
It's no different than two photographers with an Oriole on a stick with a featureless green background arguing copyright infringement, or how about a snowy owl flying over snow, and on and on.

The basis of copyright protection is whether or not whether the work in novel. Someone's original work is protected by copyright. If you copy someone else's original work its copyright infringement regardless of whether you download the photo illegally from the website and copy it or see the work and then go out and reproduce it with your own camera. It sounds absurd but I have had clients sued for copyright infringement in a variety of areas for the same thing.

Trying to take this beyond just this case is a waste of time.
The most important aspect of the case is the history of the two parties and the loser of the case not being willing to pay for use of the image in question. Instead of paying to use the original image the case lose went out and took a similar image, yes from a slightly different view point, but then went and did exactly the same post-processing. The judge said it was not different enough, you copied the basic concept of the original image i.e. the post-processing exactly the same and a camera position that was close enough to the original to make it a copy write infringement. Without the history there would have been no case. Trying to draw parallels to images in nature photography doesn't have any merit IMO.

Yeah, the back-story is relevant here. Part of it is that there was a previous 3rd photo involved, something used by the tea company (the defendants in this current suit), that itself was the subject of another infringement charge by the plaintiff; whether that earlier charge was formally made or not, I don't know. But at that time the tea company settled without a court case, and withdrew their allegedly infringing photo. Now, they did not license the 1st photo from the plaintiff when that option was offered. Instead, the tea company created the 2nd photo involved in this case, making what they thought was a reasonable attempt to avoid infringement. Unfortunately for them, this triggered a new infringement charge. Add in the high volume commercial product / advertising tie-in (as opposed to an educational application or low volume, local art print sales, for example) and the extensive effort of both parties to create a certain look through deliberate compositional choices and post-processing, and the judge found for the plaintiff despite the photos looking far from identical.

Consider if you had a photograph online and a painter downloaded and used it as a reference to create a painting. Perhaps the painting wouldn't include 100% of the photo, and might include other things added that aren't in the photo. But nevertheless, let's say the painting would be looked at by the average Joe or Jane as clearly incorporating a substantial chunk of the composition from your photo. In this case, the painting is a derivative work of your photo. If you came to learn that your photo had been used as a source like this, without permission or license, you might be upset and might very well have grounds to make a case of infringement. That's because one of the key elements of copyright law is control not just over identical "facsimile" reproductions of an original work, but also the creation of derivative works.

In this case, I suspect effectively the 2nd photo involved in the suit would be considered an infringing derivative work based on the 1st photo: something re-created with the awareness of the "look and feel" of the 1st work and intentionally duplicating some aspects of its appearance, without permission or license.

Now, there's a whole slew of other things involved in consideration of derivative works, such as transformativeness, fair use and so on. So it's far from cut & dried. But in the case of these 2 photographs (I've read the judgement), and considering that British Common Law differs in some ways from US law, I personally don't think the decision was unreasonable. Though neither am I overly enthusiastic about it. I wish that the parties had been able to settle this without having to put a court judgement on the books over these 2 photos.

Fortunately, I don't think it's such a terrible precedent that everyone everywhere who takes a photo that looks like some other photo, has to start sweating that they're going to get sued for copyright infringement. But because of the concept of derivative work, it is a possibility to be aware of.

Exactly... at which point are we as a society going to say enough is enough. Will it be after when someone shoots a subject that it cant be photographed anymore because someone got it first?

I could see if the guy took that other photographers image... but the fact is he took the time to try and recreate the image for himself. He is the copyright holder of his own image and in my view did not infringe on the other guys copyright because he didn't use his actuall image. Just used it to train himself in how to take a better image.

Copyright is automatic, the instant a work is created. In fact, in this country there isn't any facility to register your images for greater protection under local law.