Similar image breached copyright

[SidW]

You may have seen this report of a court case in the Digital Photo Review newsletter. The court found
that a similar photo of roughly the same scene was a breach of copyright. I immediately recalled the
similar incident of a challenged photo in the alphabetic competition about three weeks ago.

The DPR thread is here:
www.dpreview.com/news/2012/01/25/Imitated_Image_Copyright_Case

And here are the photographs in question, also linked from DPR. Top is the challenger, below is the challenged.

[Berndt]

Wow ... and interesting is the reasoning of the judge, that the second image is "copied substantially from the 'intellectual creation' of the first".

That is something, what should happen a million times a day, when people are using the same iPhone App for doing postproduction on their pictures or imagine, how many similar pictures are taken of a famous sightseeing spot a day.

I personally wouldn't call it a crime ... just a shaming lack of creativity of the second pictures photographer

[mickeyobe]

I was, at first, going to be critical of the judgement.
But the fact that the defendant was aware of the plaintiff's picture made me pause. That both photos seem to be destined for commercial uses does, I guess, create a problem.

As berndt said this coincidence could have happened many times but the defendant's prior knowledge of the plaintiff's picture does raise some doubt.

Beware. Anyone attempting to make his/her own version of a coloured bus against a black & white background may be hauled into court thanks to this precedent.

I am really deeply concerned now. I have many photos of flowers that I am sure have been photographed hundreds of times. And I have seen numerous similar pictures of those flowers before I snapped my shutter.
Where do I stand legally? Am I in imminent danger of losing my house? Devil's Island?
Must I put a cap on my lens and store my camera forever?

Mickey

[daveh]

It is a daft judgement. The person who took the original photo was not the possessor of the intellect that thought up the idea of greying out the rest of a picture to make the subject stand out more.

I'm uncertain if prior knowledge, or lack of it, actually matters. It is certainly not a defence that "I didn't know about it, therefore I am innocent". The answer to that is "well you should have made efforts to find out". As you say, Mickey, once it becomes a commercial proposition it does seem to be more of a problem. Who gains most from this sort of case? Why, the legal profession, of course.

[Randy]

I think this is a rather poor attempt at censorship. It's akin to my covered bridge photos. There are only so many places a person can stand in a wooded area to get the photo....so of course some people will end up with a similar photo.

[grenouille]

Thousands of tourists must have passed through that spot and taken the same photo and posted it in facebook or somewhere in the net.

Hye

[nikonbob]

This stuff is getting sillier by the minute for exactly the reasons everyone has already stated. I can see it being a problem with commercial work but for pete's sake how far from an exact deliberate copy will they bend this thing. What next, the thought police?

Bob

[daveh]

Bob, I think "thought police" has already been patented. Ypu'll probably have the thought police on to you if you keep using that phrase! ;D

[photax]

I once found out that my Dad took exactly the same picture about 40 years ago, as I did two years ago. It shows a historic site in the old town of Prague. The same subject, same point of view and the same lighting conditions. Is he now able to prosecute in this case ? Does he have the copyright ? What a nonsense !…

MIK