Public Pinterest – Why The Latest Social Network May Be A Copyright Timebomb

Another week, seemingly yet another Social Network to sign up to, share content over and get excited about. Whether or not you believe that Facebook may well have topped out and grown as big as it ever will, many are (as usual) keeping a weather eye on the horizon for the next big thing; the “Facebook Killer”. Those in the know may already be telling you that Google+ is the natural successor to Zuckerberg’s monster, but given the fact that it’s still a little unwieldy for the luddites amongst us (guilty as charged), it seems as if there’s plenty of room left for other new platforms to muscle in on what remains of our attention spans as the user market inevitably fragments.

Eighteen months or so ago, social network devotees got very excited about Quora; you couldn’t look at your Twitter timeline without seeing a smattering of serious and not-so-serious questions posed on the site. My own geek-related attempts at Quora jokes received an alarming number of serious responses; even I don’t think too seriously about whether or not Batman would actually win a fight with Wolverine – but it looks now as if the site is now only going to find a certain niche (if devoted) audience. Those who love it seem to swear by it and it’s still very much alive and kicking, but the initial hype surrounding Quora seemed to die down pretty quickly, with only the heavy adopters still hanging around to pose their own big questions.

So, it may be easy to feel slightly cynical about the latest new and shiny social network – Pinterest. For those that haven’t come across it yet, Pinterest is an online notice board where users share ideas on chosen topics by “pinning” content onto their boards for their followers to see and comment on. So far, so ethereal. If the naysayers are right, then it’s yet another quirky platform vying for our time. The naysayers will, however, have a problem getting past the fact that Pinterest is well on its way to 12 million users since launching a couple of years ago and is one of the US’ fastest growing sites. You may wonder why, and may be surprised to learn that the majority of new users are Women. The answer seems to be that it’s easy to use and is generating a massive amount of publicity after something of a “breakout” performance around the NFL Superbowl. Even Mark Zuckerberg has a profile.

Like so many of the big social networks, however, the elephant in the room which may see Pinterest hit an early (if theoretical) stumbling block is one of the usual suspects – copyright. Unless you’re only pinning your own content to your profile, you’re using someone else’s and in the vast majority of cases doing so without permission or paying a licence fee. Right now, Pinterest’s users are happily posting photos and other content without the spectre of rights owners casting too much of a shadow over the party, and even though some are already claiming that the site’s whole model is built on massive copyright infringement, it’s continuing to grow like topsy.

Of course, Pinterest’s terms of use do their best to deal with the issue, with users being told on signup that they can’t and shouldn’t pin anything to which they don’t own the rights. This may well be enough to stop a large-scale infringement claim (at least under UK/EU law, where they can fall back on the “hosting defence” in the E-Commerce Regulations and simply immediately remove content when put on notice to avoid liability) and the site itself is now rolling out a metatag which allows website owners to restrict their content from being “pinned” on user profiles.

But, copying any content without permission is still an infringement and still illegal. Whether or not anyone will sue for the damages which they’re recover under UK law (a licence fee) or take on the site itself in another jurisdicition remains to be seen but as of right now the position is the same as with Facebook, Twitter and any other platform – using content without permission or falling under a defence or exemption to UK copyright law (such as fair dealing or educational use, but even then those defences only work with an acknowledgement to the copyright owner) is infringement and could lead to your profile or its contents being pulled.

Of course, in the new digital economy it may be that may rights owners simply let the situation lie and become content with their work simply finding a new audience through sharing and reduce their P.R/Marketing budget. For now, however, the risk is still very much live that big content reacts in the same way it has in the music, games and film industries and threatens action left, right and centre. The platform has massive potential, and with a fair wind it could continue to generate an engaged following but as with any other social media platform, users still need to be aware that they use third party images or other content at their own risk. Trust a Lawyer to spoil the party..

Shut Up Photoshop – Digital alterations and compositions of Photographs now protected by Copyright

IP Lawyers, like all other professionals, are used to hearing certain phrases over and over again – for example: “How do I copyright this?” “If I make five changes, is that enough?” and the undisputed champion of heavyweight client indignation: “But they stole my idea!!”. It’s at this point that the Lawyer (usually the villain of the piece, occasionally through no fault of their own-they’re usually only seen as getting in the way of something or being the bearer of bad news) has to look their client square in the eye and explain one of the most fundamental (and misunderstood) principles of copyright and pretty much all other UK IP law; IP law doesn’t protect ideas; it protects how those ideas are expressed. If you really want to keep an idea confidential, write it down before labelling it as “confidential” and asking anyone you want to tell about it to sign an NDA.

So far, so good-there’s nothing to stop two different copyright “works” from being inspired by the same idea as long as one doesn’t slavishly copy the other: “The Da Vinci Code” was based on very similar themes to “The Holy Blood And The Holy Grail” and despite a very high-profile copyright infringement case which showed that over ten elements of “Holy Blood” made their way into Dan Brown’s book, that wasn’t enough for its authors and their publishers to win at trial.

It’s often said that there are very few original ideas left, at least in the creative world. Ask the older, more cynical members of the public whether or not Jamiroquai would have had a career if not for the influence of Stevie Wonder or whether Oasis would have been as successful without a record collection made up of the Who, the Stones and the Beatles and they’d probably agree.

So, what is it that makes a work of creativity something that can be protected by copyright if not the general idea? The answer’s actually fairly simple, and explains the whole point of copyright law-it allows creators to make money out of their creativity; it protects intellectual creation. Two songs can sound very similar, say “Born This Way” and “Express Yourself”, without one infringing on the copyright in the other – if the latter only shares a similar melody or chord changes then it can be protected in its own right. What the Court has to decide is whether or not a “substantial part” of the “intellectual creation” in the original has been used without the permission of its author/creator, who is usually the owner of any copyright in it.

So it stayed for a very long time – until late last month, when the goalposts may have been not so much moved but put in separate postcodes by the judgment in the case of Temple Island Collections Limited v New English Teas and John Houghton. Surely such an innocuous-sounding case couldn’t redefine the boundaries of copyright law? It remains to be seen, but the answer as of right now is a qualified “yes”.

Why should you care? Because in this case, the Court found that the basic idea behind a photograph which had been edited in Photoshop was protectable-a shot of a Red London Routemaster Bus travelling in front of a monochrome background containing the Houses Of Parliament was re-created by the Defendant and shot from a different angle, but was still found to infringe. What this means in practice is that the way in which a photograph is composed by its Photographer and subsequently altered can now be protected by copyright, even if the infringing photograph is a different image.

Copyright Lawyers are very excited and/or disturbed by this judgment. Photographs are protected by copyright under English Law as “artistic works” and photography infringement cases usually involve images that have simply been taken wholesale and used without permission, leading to the award of a fairly low sum in damages to compensate their creator by forcing the defendant to pay what they would have made had the image been used under licence (subject to a small increase for flagrant use) or hand over the profits generated through its use. They can also involve situations where an original image has been altered, provided that the Claimant can show that their original work was copied.

For years, though, Photographers haven’t really been able to do a great about a competitor that sets up a similar (not identical) shot and takes their own photo, because the idea behind that shot couldn’t usually be protected.

The last case before Temple Island that dealt with the issue involved, ironically enough, Oasis. Creation Records (their label), Noel Gallagher and others sued News Group Newspapers (no, NOT News International) in 1997 after The Sun began selling a poster which featured a photograph of the set of the album cover of “Be Here Now”taken at the same time as the final image, although not the actual photograph used on the cover. If you’re one of the many who bought it (and the few that still own it save for use as a coaster) then you may appreciate why-it features a Rolls-Royce emerging from a swimming pool and various members of the band in suitably moody poses surrounded by apparently “symbolic” objects.

Creation and the other claimants argued in this case that the scene and composition of the photograph was a separate copyright work and protectable in its own right. The Judge disagreed, finding that assembling disparate objects together could not be protected by copyright, and reinforcing the theory that two works created from a common source don’t always involve the other being copied.

The decision made sense fifteen years ago, and despite the emergence of Photoshop and the rise of airbrushing, it’s always seemed to make sense since. However, in the Temple Island case, the Claimant sued when New English Teas asked a design agency to digitally alter photographs taken by one of its directors of a London Bus crossing Westminster abridge with the Houses of Parliament in the background.

You’d think that there wouldn’t be a problem in taking a photograph of an admittedly iconic London scene. Normally you’d be right, but in this case the parties had crossed swords before, when New English Teas had previously entered into a licence agreement to use a photograph taken of a very similar scene by one of Temple Island’s directors (Mr. Fielder) and then photoshopped to make the Bus seem redder (inspired by Schindler’s List) against a monochrome backdrop with the sky removed in favour of a white background. The image became famous in its own right and has since made Temple a significant amount of money through licensed use on souvenirs.

New English tried to get around the problem of copyright infringement by talking four of their own versions of the photograph and combining them, as well as inserting a stock image of a red London bus. According to the Court, they didn’t go far enough.Judge Birss ran through the different aspects of photography that could be protected by copyright in his judgment, including the angle of the shot, lighting, exposure and effects, creation of the scene and simply standing in the right place, before coming up with a whole new category-digital manipulation.

Even though Fielder used Photoshop to create the image and despite the fact that New English used a stock photograph of the Bus and pointed to several similar images to the original which were already in the public domain before the Temple Island image was created (although they didn’t argue that the image had been “influenced” by them), the fact that they had come into contact with the Temple Island image meant that they had not created their version independently, even if they also drew from other sources-it had guided the creative process behind their version, and New English’s image would not have been created if they hadn’t seen the original.

Although the second photograph was found to be original and the techniques used to create the first image commonplace, the composition and visual contrasts in the Temple Island image amounted to “intellectual creation”. The choices made by photographers lead to different visual effects, and those choices can apparently be protected by copyright on the basis that they are “original”. A substantial part of the composition of the original image had been used, so infringement had taken place. Part of what made the composition original was how it had been altered.

It’s been argued before and since that is decision or a similar one would give claimants like Temple Island a monopoly in a common image, but that may have missed the point here-that monopoly is limited, but the scope of the application of this case may not be. It’s possible that this could lead to a rash of similar claims, and the line between copying an original idea and how that idea is expressed is going to blurred even further. Inspiration is valuable, but here perspiration was priceless.

Photoshopped images may now be protected in the same way as the original photograph,but anodyne and everyday images without any real distinctive elements will be tougher to sue on. That won’t stop people from trying however, and the Courts may soon be full of photographers for reasons other than snapping a photo of celebrity claimants. In the meantime, if you’re asked to recreate an iconic image, take more care than ever to steer as far away as possible or risk being crushed by the same red bus as New English.