Copying a brochure - remarkably similar images and layout

If you are worried about infringement or your work has been copied and you want to take action.
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surfgatinho
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Copying a brochure - remarkably similar images and layout

Post by surfgatinho » Fri Mar 20, 2015 12:33 pm

Hi,

This query is more a matter of interest / discussion as it doesn't relate to me directly.

Someone told me the other day that they had had some brochures printed for their business. These had been illustrated with photos they had taken.

At a later date she was in a doctors surgery where she picked up a leaflet by someone doing exactly the same as her. Whilst I haven't seen the two leaflets, apparently this leaflet had the same lay out and all the photos were of the same subject, right down to a child posing in front of the same boat.

Clearly some form of copying has occurred, but is it copyright infringement?

Many thanks,
Chris

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AndyJ
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Post by AndyJ » Sat Mar 21, 2015 7:55 am

Hi Chris,
Without seeing the two leaflets it's hard to say what might have been infringed. If all the photographs and text were different, it could just be that the printer used the same format, possibly even using some publishing software which defaulted to a standard layout.
However if the images appeared to be very similar in their subject matter and composition, that does tend to suggest someone set out to deliberately copy the look and feel of the original.
As you know, for infringement to take place, a substantial part of the original needs to have been copied, and so a court would need to examine how substantial the design element was as a part of the overall work.
A dispute from 2012 known as the Red Bus Case looked at a similar issue and it was found that a photograph which was similar to another, used on product packaging, did infringe because the defendant had deliberately intended to copy the look and style of the claimant's work (and indeed had done so on a previous occasion and had been found to have infringed then also). The two images are shown below.
The original
Image

The infringing copy.

Image

But that decision was controversial, because critics said that the court had taken too much notice of the underlying idea (which is not protectable per se) and had not just based its finding on the final expression of the idea which was clearly not a facsimile copy. You can read about that case here: Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

surfgatinho
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Post by surfgatinho » Sat Mar 21, 2015 11:00 am

Thanks Andy,

I haven't seen the leaflets myself either but the degree of similarity sounded far more than coincidence. I suspect there would be a case to answer, but I also suspect the lady who made up the original won't want to upset anyone so nothing will happen.

I'd seen the Red Bus case before. It must have been very borderline considering how iconic the subjects are and the fact that these manipulation techniques are extremely common. Nevertheless, I think most would agree one is derivative of the other.

Hard to know where the line is drawn though. I took a photo a while back based on a magazine cover shot. I did credit them with the idea and let them know about it - I hadn't considered any aspects of copyright though. I guess it is possible the magazine has an exclusive license too...

I really appreciate all the help and information you have provided on this forum. It is an invaluable resource for practical information that is very difficult to find in general.

Chris

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