Unicorn (not by George Bush)

Today on IPcopy we have a guest post from Tom Lingard of Stevens & Bolton LLP.

It’s always nice to have a hobby to keep you busy in retirement; perhaps never more so than when the job from which you have retired is Leader of the Free World. This was presumably former US President George W. Bush’s thinking when he took up painting, but whereas the artwork of most amateur painters will never be seen by anyone other than immediate family, one of the unique benefits of being an ex-President is having a 14,000 sq. ft. exhibition space at your eponymous Presidential Center in which to exhibit them. However, instead of earnest criticism about the obvious influence of early 20th century Fauvism and Post-Impressionist era Gauguin on Mr Bush’s portraits of various world leaders (including Tony Blair, Angela Merkel, Hamid Karzai, Vladimir Putin and the Dalai Lama), the pictures have attracted attention for the striking similarity they bear to photographs that appear at the top of the search results when the leaders’ names are put into search engines. So has Mr Bush inadvertently walked into a legal minefield?

Photographs present particular issues from a copyright point of view and that is before one factors in the jurisdictional issues raised by the international nature of Mr Bush’s muses. Whilst the chances of Mr Bush actually facing a claim may be relatively slim, the situation does illustrate well the tangled web of rights and defences that can apply to images that many of the public (and apparently a former President) assume they are free to use.

Subsistence

Although the mechanism of recording a photo does not require skill and labour beyond pressing a button, photographs are works capable of protection under copyright law and the Infopaq¹ case established that copyright can subsist if the photograph is the author’s own “intellectual creation”. In Temple Islands Collections v New England Tea² Birss HHJ QC (as he then was) drew attention to three aspects in which a photograph can be original:

• The angle of shot, light and shade, exposure and effects achieved with filters and developing techniques
• The creation of the scene to be photographs
• Features derived from being in the right place at the right time

Even though each photo apparently used by Mr Bush is one of probably thousands of a given world leader, the fact that they are generally official portraits, or at least of sufficient aesthetic appeal to be chosen to illustrate articles would suggest there is no doubt copyright subsists in them.

Ownership

Establishing who owns copyright in an image is not straightforward. The portrait of Tony Blair is very similar to a photo on his own website in which he apparently owns copyright. However, the portrait of Mexican President Felipe Calderón bears a strong resemblance to that featured in a Daily Telegraph article and credited to the Associated Press.

A number of the photographs identified appear to most prominent on Wikipedia, which, in the case of Vladimir Putin and Angela Merkel, uses the images under Creative Commons licences. Under the terms of the licences in question, Mr Bush would be free to adapt the photographs and copy, distribute and transmit any derivative works, provided that he attributed the original work in the appropriate manner – although there is no suggestion that he has done so.

Of course if Mr Bush carried out a diligent but fruitless search for the owner of copyright in the photos he could seek to argue that they are orphan works, although that seems unlikely.

Infringement

So do any of the owners of copyright in the photographs have a claim for infringement against Mr Bush? The similarities in composition and colour between some the photographs and portraits are clearly sufficient to raise an inference that one is a reproduction of the other in another form, but has Mr Bush infringed?

In Temple Islands the Court agreed with the a long-established principle under US law that to infringe copyright in a photograph does not require a facsimile reproduction. The question is whether, given the ways in which a photograph can be original, which elements have been reproduced and do they constitute a substantial part?

In Bauman v Fussell³ a photograph of a cockfight was published in a magazine and seen by an artist who then created an oil painting based upon it. In the painting the two birds were in a similar position, but none of the other features had been reproduced. The Court of Appeal struggled slightly with the questions before it, but held that notwithstanding the position of the birds, the effect of the painting was entirely different, and that the photograph was only an inspiration.

Some of Mr Bush’s portraits appear to be more complete and accurate reproductions than others, but in a number of cases it is hard to identify and differences, other than those resulting from the change of medium (and perhaps Mr Bush’s inherent skill level).

Defences and Exceptions

Whether or not Mr Bush has reproduced a substantial part of the photographs, a host of other considerations would need to be taken into account, depending on the court and jurisdiction concerned.

• Now that Mr Bush is exhibiting the works (and entry to his exhibition is not free) he can no longer rely on a private studying exemption under UK law
• Do his acts constitute fair use under US law?
• Do Italian or German image right-regimes apply?
• Is the photo of Hamid Karzai governed by an Afghan equivalent of Crown Copyright?
• Where does the Dalai Lama stand on litigation generally?

Conclusions

In reality it is unlikely that an aggrieved world leader will risk a diplomatic incident to bring a claim against Mr Bush. However, as the well-publicised US case concerning the Barack Obama “Hope” poster has shown, US presidents and photographs can be a contentious mix, and the legal issues in this case are far from straightforward. One has to hope, therefore, that if it comes to it, hopefully Mr Bush will not source his legal advice from the same place as his inspiration.

Tom Lingard  17 July 2014
¹ C-5/08 [2010] FSR 20
²[2012] EWPCC 1
³(1953) [1978] RPC 485 CA