A recent
Judgment handed down by the Patents
County Court Judge HH Judge Birss QC
in
Temple Island Collections Ltd v
New English Teas Ltd and N J
Houghton has reinforced the
importance of Taylors’ landmark
House of Lords case of
Designers
Guild v Russell Williams Textiles on copyright
infringement.A recent
Judgment handed down by the Patents
County Court Judge HH Judge Birss QC
in Temple Island Collections Ltd v
New English Teas Ltd and N J
Houghton has reinforced the
importance of Taylors’ landmark
House of Lords case of
Designers
Guild v Russell Williams Textiles on copyright
infringement.
The “red bus case” brought by
Temple Island Collections Limited, a
company producing London souvenirs,
concerned copyright in their iconic
photograph of a red bus on
Westminster Bridge. A copy of the
Temple Island photograph and the
rival New English Teas version can
be seen in the
Patents County Court
judgment.
The Claimant’s photographer had
spent some 80 hours on the red bus
photo, which was manipulated in
Photoshop using a technique inspired
by the film Schindler’s List. The
image had become famous and had been
licensed by Temple Island to, among
others, the organisation which
operates the Tower of London.
The Defendants wished to produce
an image using the same iconic
London landmarks with grey scale
Houses of Parliament and a red bus
on the bridge. They came up with the
photo at Annex 2 of the judgment.
The Claimant argued that a
substantial part of its image must
have been reproduced by the
Defendants, who said that copyright
law could not be used to give Temple
Island a monopoly in a black and
white image of the Houses of
Parliament with a red bus in it.
The Judge confirmed that
copyright protection (which exists
in an original artistic work) can
extend to a photograph if it is the
author’s own “intellectual creation”
and not just a mechanical exercise
of a recording of light by merely
pressing a button.
Designers Guild sets out the
basis for assessing whether an
infringement of copyright has taken
place: first one asks whether there
has been copying and if so which
features have been copied, and then
asks whether that represents a
substantial part of the original.
Substantiality is a matter of
quality, not quantity.
The Judge found that, whilst the
Houses of Parliament, Big Ben and a
red Routemaster bus are iconic
images of London, and the technique
used was not unique, the Claimant’s
work was original. Two noteworthy
elements of the photo were its
composition and the visual contrasts
between the bus/the monochrome
background and the blank white
sky/the rest of the photograph.
These were the expression of the
skill and labour exercised by the
photographer and his intellectual
creation.
Differences between an original
work and an alleged copy do not help
on the question of whether copying
has taken place but can have a
bearing on whether a substantial
part of one artistic work has been
taken into another. The Judge found
here that a substantial part of the
Claimant’s work – “an aesthetic
quality, a simplicity and clarity” –
had been copied. The Defendants were
free to use an image of London
landmarks, but what they were not
free to do was copy a substantial
part of the Claimant’s work.
For more information and advice
on how Taylors’ IP team can add
value to your business, contact
Tony
Catterall,
tony.catterall@taylors.co.uk
or
01254 297900. |
