Red Bus, Gold Bus, Green Elephant?

Few readers of this weblog could have missed the fact that the IPKat's friends on the Art & Artifice art-and-law weblog held an event last week in which Michael Edenborough QC sought to explain to a persistently unaccepting world that Colin Birss's judgment in the Red Bus case (Temple Island Collections Ltd v New English Teas [2012] EWPCC 1) was actually correct.  Art & Artifice carries a report on the event here, but the Kats have their own version, kindly penned by Rouse's Mary Smillie. Mary writes:
"Simmons & Simmons hosted a lively evening of debate about the Patents County Court decision in the Red Bus case, Temple Island Collections Ltd v New English Teas [2012] EWPCC 1, 12 January 2012, and had the coup of having the opposing counsel in the room (well, in the Simmons’ dining room). The event was chaired by the effervescent Rosie Burbidge stepping into the shoes of the indisposed Jeremy Phillips at short notice.

Michael Edenborough QC started the evening by setting out why there was infringement, discussed the prejudice of an earlier case in which the Red Bus image had been copied, and analysed the ‘substantial part’ that had been taken. The fact that the image had been ‘photoshopped’ and constructed from four photographs was significant; three were of different aspects of the Houses of Parliament and the fourth was a picture of a red Routemaster bus while it was stationary on the Strand: these factors contributed to the finding of infringement.

David Stone (Simmons & Simmons) then set out the alternative view, and pointed out the substantial parts of the image which had not been copied, and the different angles from which the ‘photographs’ have been taken.

Finally Rachel Buker (Art & Artifice blogger and Intellectual Property Attorney at Ironmark Law Group, PLLC)  gave her view that infringement would not have been foun,d had the Red Bus case been heard in the USA. She referred to the case of Kerr v New Yorker Magazine, Inc, where it had been held that there was no copyright infringement by New Yorker Magazine which had published on its front page the image of a man with a Mohican haircut which outlined the skyline of New York. The idea had been taken from an earlier representation by Kerr of the New York skyline on a Mohican’s haircut in a pen and ink drawing. This decision was based on the conclusion that there cannot be copyright in an idea.

In the discussion that followed about how far an image would need to be removed from the original Red Bus photograph in order to not infringe, perhaps if the image had instead been one of the 50 gold London buses (in honour of the Queen’s jubilee). Richard Davis (who opposed Michael Edenborough QC in Red Bus) commented that, in his view, for His Honour Judge Birss QC, an image of a green elephant in front of the Taj Mahal with the sky whitened out would not be far enough removed to escape infringement.

Although the Court of Appeal gave permission for an appeal, the parties settled and so there was no grand finale to this controversial copyright case. 
The backdrop to the evening was the Simmons & Simmons dining room, the walls of which were decorated with Damien Hirst’s artworks, including the 13 pictures which make up the Last Supper from 1999. These consist of representations of medicinal product packaging with food items marked on them such as Salad Tablets and Sandwich capsules. It was fascinating to hear about Damien Hirst’s spot painting. This was originally installed in Simmons' former premises in Silk Street. It was supplied with a certificate, paint brushes, pots of paint, protractor and a set of compasses. It can only be installed in one place at one time and so when Simmons & Simmons moved to Ropemaker Walk, the original was painted over, and Damien Hirst’s installers were summoned to paint the spots on the wall of the dining room.

About a third of the 100 attendees were taken on a tour of the Simmons & Simmons art collection which was created with the intention of supporting young artists early in their careers and to develop a showcase for those artists beyond the galleries".
Red Bus, Gold Bus, Green Elephant? Red Bus, Gold Bus, Green Elephant? Reviewed by Jeremy on Saturday, November 02, 2013 Rating: 5


  1. I have checked my dusty copy of 'Correct Answers to All Legal Questions' by Plato. It explains whether this judgment is 'correct' or not but I'm keeping the answer to myself.

  2. It's nice to see that copyright law still cannot decide whether a picture has been copied, whilst at the same time coping with the new challenges of the digital era. Its good for judges to occasionally face the undecidable to keep them on their toes.

  3. It was a real shock to me to learn about the Red Bus case, because it looks like a major departure from the old rule that design and copyright protect the appearence, not factual content. We have many examples of timetable layouts that were protected, but the actual departure times and geographical locations were not. The same with photography: there was a major difference between a photograph merely documenting a geographical fact or view, and an artistic photograph. Obviously, if the creator were a famous photographer, more views by that creator might be protected.

    Here I see huge possibilities of for instance preventing private mapping of territory and the publication of even sketches of maps. The mere fact that GoogleMaps, ViaMichelin, Bing, well, the Ordnance Survey, all have published maps will mean that anybody publishing a map may be an infringer, even by mentioning GPS coordinates. Does somebody really have the right to monopolise facts that anybody is permitted to determine? It reminds me of the old German rules for trademarks, that you could not monopolise the use of for instance single letters or phrases that were descriptive for a certain phenomenon. The language had to be free for all.

    Even if a party has admitted infringment, such an admittance should be discounted if it cannot be proven.

    Fortunately, this decision was probably not one that will set a precedent, as it is a lower court decision.

    “Although the Court of Appeal gave permission for an appeal, the parties settled and so there was no grand finale to this controversial copyright case.” – this is the worst bit and also the reason that I intensely dislike arbitration, although professionally I am compelled to promote it. It deprives Society of jurisprudence.

    Kind regards,

    George Brock-Nannestad


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