In a shock ruling in the UK this Tuesday, a photo was found to be in violation of the copyright monopoly of another photographer. There’s only one hitch with this ruling: the infringing copy was not a copy at all, but another original with a similar composition.
This verdict throws the entire copyright monopoly concept overboard; it has always been a monopoly on outright copying of a work. Here, for the first time, something that is not a copy is found to be in violation of the copying monopoly. The judge determined that the compositions were similar enough for the second photographer to be in violation of the copyright monopoly of the first one.
Deem for yourself – here are the two images side by side (from the public court verdict):
Yes, the images are arguably similar. But there is absolutely no merit whatsoever to the claim that one would be a copy of the other, thus violating the copyright monopoly. What the judge has done here is to set a precedent that states that the monopoly does not just cover the creative work, but extends to a general creative idea, which completely shatters the traditional notion that the copyright monopoly only covers a specific expression of an idea, and never the idea itself.
So what’s the big deal, then? In this case, they sought to recreate the image and took a similar one. Why is that not a violation of the copyright monopoly?
Because that’s exactly how you do it if you don’t want to pay a license fee on the original terms. You create a similar work yourself, entirely by yourself, and compete. It’s the whole damned idea.
This precedent in the United Kingdom just sent the copyright monopoly completely overboard. It has now ventured into patent monopoly territory, where you can be sued for creating something all by yourself even if you’ve never heard of a previous similar invention. This has serious chilling effects on creativity.
I consider this verdict to be another nail in the copyright monopoly’s coffin. This is just insane, and – importantly – perceived as insane by all creators alike, who are now riddled with fear, uncertainty and doubt when taking a simple photograph and editing it. With this in the back, they can be sued for doing their daily work just like they always have been shooting images and editing them. This doesn’t go for just the United Kingdom, but all of the European Union, as any EU court is setting precedents across the entire European Union.
As a side note, it can be seriously questioned how much creative work is involved in graying out London on a rainy day. Or how much work at all, actually. I should know – I just made a third replica for this article to prove a point. It took me about 90 seconds.
Update: See also Slashdot, which broke the news 22 minutes after this article.
Update 2: See also BoingBoing, where Cory Doctorow calls this “an apocalyptically bad ruling, and an utter disaster in the making”.