Eric Swetsky's newsletter, October 2001
The case of the photocopied photo
A noteworthy copyright case was recently decided in England. A British antiques dealer conducted business over the Internet via its Antiquesportfolio.com Website. At a cost of some £68,000, they hired Rodney Fitch & Company Limited, a design consultancy firm, to create their branding. The project included a Website design plus the design of their logos, watermarks, advertising literature, brochures, business cards and posters.
As part of the Website's design, Fitch & Co. created a number of icons and 25 navigation buttons for the Home Page, arranged 5 x 5 -- by pressing a navigation button, a visitor to the Site is taken to a separate page where goods of the type shown on the button are advertised. To obtain the images displayed by the icons and buttons, Fitch & Co. made photocopies of photographs of jugs, sofas, etc. contained in Millers Antiques Encyclopedia, scanning the photocopies and reducing them to a very small size.
The logos and watermarks were traced from the outlines of objects contained in the Encyclopedia.
No permissions were sought from the owners of the Encyclopedia. While the Encyclopedia did not contact anyone in this regard, Antiquesportfolio.com learned on their own about the unauthorized reproductions and were so concerned about possible repercussions, that they spent £8,000 to fix the Site. Antiquesportfolio.com sued Fitch & Co.
The Court first spoke of the legal duty on creators (such as designers or advertising agencies) to use non-infringing materials in their work:
"(they have) a duty…to use reasonable care not to use material knowingly copied from a third party…(otherwise it is not) fit for the purpose for which it is commissioned."
Before moving on, remember that under copyright law, for an infringement of copyright to exist, the copy must be substantially similar to the original.
With respect to the scanned photocopies of the photographs, Fitch & Co. argued that since the icons and buttons were reduced to a very small size, little if any detail remained such that the icons and buttons were not substantially similar to the original photographs.
The Court recognized the strength of that argument, but concluded that the icons and buttons nonetheless could be infringements:
"it would seem rather strange if…copyright exists in the whole photograph (but that) there is no infringement in a case involving reproduction of the whole photograph."
The Court concluded that the tracings did not infringe any copyright held by the Encyclopedia since they were simple tracings that did not reproduce any of the originality in any of the photographs contained in the Encyclopedia, and therefore were not substantially similar.
The Court said Antiquesportfolio.com was entitled to damages of £8,000.
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