Rights and risks associated with photography

A decision of the patent county court last month, relating to a photograph of a red London bus crossing Westminster Bridge with the Houses of Parliament in the background, doesn't sound particularly novel, exciting or protectable. But the ruling in this case, Temple Ireland Collections Ltd v New English Teas Ltd [2012] EWPCC 1, is worth reading because it stresses just how far the law has developed in protecting photographic copyright.

Perhaps brought on by the move away from film to more easily manipulated digital images, the general stance that there is no copyright in an idea but only in the work itself is now under new scrutiny.

The defendant in Temple had taken photographs similar to the original London bus image referred to earlier, and edited them in Photoshop to mimic the monochrome style that had been applied to it. The work was original to the extent that none of the images from the claimant's work had been adopted, but the concept had been 'borrowed', resulting in the claimant's contention that their copyright had been breached.

The court found against the defendant, basing the decision on the argument that there was originality in the initial work which had then been knowingly copied to a substantial extent by the defendant.

It could be said that this is not purely a photographic copyright case because the manipulated images could be seen as a montage. However, it demonstrates that it is now possible to create a photographic work which in itself is distinctive and which will be protected as such and perhaps cannot be duplicated as easily as in the past.

Bearing in mind that the Olympics will attract a considerable number of overseas tourists keen to take images of London icons home with them, perhaps lawyers should be warning them against photographing a London bobby lest they find themselves inadvertently arrested.

While section 44 of the Terrorism Act 2000, dealing with stop and search, has been modified by section 47(a), a senior police officer can still authorise the arrest of someone photographing a policeman or a member of the armed forces if they believe that this is likely to be associated with the preparation for a terrorist act. So, any photographers trying to put together a portfolio including images of policeman and guardsmen on sentry duty could run into problems inadvertently.

Notwithstanding the change in the legislation, a photographer was arrested last year under section 58a of the Terrorism Act on suspicion of gathering material for the purposes of terrorism, but was subsequently released without any further action. He had simply taken photographs of security personnel and transport hubs in the Charing Cross area at the time of the royal wedding; the concern is that professional photographers will become reluctant to try to capture images for commercial exploitation for fear of arrest.

Moreover, there has been a growing tendency for private security guards to try and restrict photographers from taking photographs of buildings while standing on the public highway, again under the guise of concerns with regard to terrorism.

Misinterpretation

Clearly there is an element of confusion as to how the law is currently being interpreted. While not exactly judicially persuasive, take a look at the YouTube video showing an incident at the Golden Wonder factory in Scunthorpe to see how security guards are trying to dissuade a photographer from carrying out a perfectly legal activity.

Reliance upon public interest when someone was challenged for taking photographs on a train to highlight overcrowding and potential danger caused by heavy luggage in the aisles also led recently to a dispute with South West Trains. The guard allegedly threatened to call the police, wrongly relying upon the Terrorism Act.

The concern is that a publisher client might be threatened about using a photograph taken under such circumstances, and lawyers must adopt a robust approach in defending the freedom of the press.

Yet another challenge may be forthcoming for photographers involved in architectural photography. Perhaps it will only be a matter of time before architects start asserting their rights in the design of buildings in a similar way to the creator of the red bus photograph.

However, it is not an entirely one-way street. Photographers benefited from a Court of Appeal finding in MGN ltd v Grisbrook [2010] EWCA Civ 1399, which upheld the High Court's decision that a licence from a freelance photographer who provided photographs to the Daily Mirror did not cover their commercial exploitation of archive websites containing back copies of the newspaper, since online exploitation was not contemplated at the time the licence was granted. While one can be fairly confident that current licences will be appropriately drafted, it highlights the need to check the documentation before advising a client in any circumstances.

So, from the perspective of any lawyer advising professional photographers, life has certainly become more difficult.