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IV. INFRINGEMENT AND ENFORCEMENT
Copyright is only infringed if “a substantial part of the work with copyright is reproduced”. ...
I do not consider that it can seriously be contended that these logos represented an infringement
of the copyright in the photographs in the Encyclopaedia. The simple photograph of an object,
however carefully lit, angled or focused the photograph may be, and however skillful and careful
the photographer may have been, is not really carried through, to any significant extent whatever,
into these logos. ...
Copinger and Skone James on Copyrightsay this at para. 7.86:
Photographs are commonly reproduced photographically or by some other facsimile
process, but they also may be reproduced by drawing, painting or even another
photograph with which the subject matter was specially based, posed or selected.
These cases sometimes cause difficulties and it is important to understand what it is
that the copyright in a photograph protects, namely, the author’s work of origination;
whereas, where a photographer takes a photograph of some public event, or naturally
occurring theme, a defendant who uses the photograph to obtain an accurate
impression of the relative positions of the individuals or objects in the scene, but
otherwise recreates the scene in his own style, will usually not infringe. That is
because the relative positions of the individuals or objects are not the work of the
photographer.
This may even be the case where the scene is not commonplace and the photograph
may have been the inspiration for the defendant’s work. But where the defendant is,
in addition, recreating the feeling and artistic character of the plaintiff ’s work, this
may be sufficient to amount to an infringement if a substantial portion of the
plaintiff ’s work has thereby been taken. So, also, where the photographer has
arranged the subject matter of the photograph to create a particular design, or has
composed his photograph to include the particular selection of features which the
defendant has copied, in each case it is a matter of degree.
To my mind, that passage represents the law. I particularly emphasize the points that it is the
“author’s work of origination which is protected”, and that there may be infringement where the
defendant has “recreat[ed] the feeling and artistic character of the plaintiff ’s work.”
In my judgment, those two observations are fatal to the contention ... that the logos infringe the
copyright in the photographs from which I accept they were lifted.
If one considers the originality said to be involved in the photographs, namely, focusing, lighting,
choice of object and camera angle, it seems to me that really nothing remains in the logos.
Obviously, focusing and lighting do not carry through to the logos, although, in a sense, the
selection of the particular object does translate in the logos; the logos are gross, as opposed to
refined, and the nature of the particular object dictates the shape. Further, the precise angle of
the object, although possibly a subtle matter in a photograph, cannot really be said to be reflected
to any significant extent in the logos.
