Am I Infringing this business's copyright with this?

[sam]

Hello. I have created a Facebook Cover image for a not for profit Community group. See the image here. https://www.facebook.com/photo.php?fbid ... =1&theater

Another Facebook Group which is a local business is claiming I have Infringed their copyright and threatening legal action. Please take a look at their Facebook Cover image and tell me if you think I have infringed their copyright. Their Facebook group is here and the Cover image is the one displayed on that page. https://www.facebook.com/Loveyourdoorst ... =1&theater

I'd be grateful for any help. In my opinion it is totally different but the threatening comments are worrying me that I may have missed something.

Many thanks for any help.

[AndyJ]

Hi sam,

I don't have a facebook account so I can't look at the images you mention. However, much will depend on where your image came from. If you found it somewhere on the internet, then the chances are that someone will own the copyright in that image, possibly this other facebook group. However if you created the image yourself (say as a photograph) then unless you actually copied the other image, there is unlikely to be any infringement. Two images can be similar in their concept or subject matter without necessarily involving infringement. This is known as the independent creation defence. Only you will know if you set out to copy the other image, but if you are sure that you didn't, then you should have nothing to worry about. A good piece of caselaw to have a look at is the Red Bus case from a few years ago, as it shows the sort of things a court would look at in cases of similarity, rather than actual direct copying. Bear in mind that in that particular case, the defendant had previously infringed another of the claimant's images, and this time round he had deliberately set out to create an image which was similar to, but not an exact copy of, the claimant's. This weighed heavily against the defendant.

[sam]

Thank you Andy. Would it be OK for me to post both images on here for comparison or would that be out of order?

I'm not sure that I can copy them on here but I don't think you need to have a Facebook account to see the images via the links I gave.

[AndyJ]

Hi sam,

No, copying the images here would constitute infringement, of the other image at least. If you can embed links here then that's fine but those earlier links didn't work for me, last time I tried them. If the images are protected on facebook, ie you need to log in to access them, then it would be an infringement to circumvent the restrictions created by facebook.

Afternote.I have just re-checked the second link in the first posting, and it does work. I assume you are talking about the simple picture of a panorama with silhouetted trees, clouds and three houses etc.

[sam]

Yes, that is the one who is suggesting I have infringed their copyright.
They are complaining about the colours I have used is similar to the colour they have used and the girl with the dog are too similar and an infringement of their copyright.

[AndyJ]

hi sam,

Based on those two things alone being similar, it doesn't sound like there is much substance to their claim. The important thing is whether you set out to copy their idea. In theory ideas are not protected, but if, as in the Red Bus case, you did set out to loosely copy their idea, and they can prove this, then it does increase the strength of their claim. However, for their claim to succeed in court they would need to show that the colour and the girl with a dog were substantial elements of their picture. The other thing they would need to show is that they own the copyright in this picture. Copyright will have initially belonged to the artist who made the graphic, and even if the company commissioned the artwork, unless the copyright was assigned or licensed exclusively to them in writing by the artist, they will not be the owner of the copyright. Without either of those things having taken place (and they quite often don't with a simple commission), the facebook group/company do not have the legal right to start a claim against you.

You don't mention what action the other group want you to take. Do they just want the image removed from your facebook page, or has there been a demand for some payment for the alleged infringement? Since they are threatening legal action, if there has been a demand for payment, you may need to get legal advice from your own solicitor or Citizens Advice. However, before things get expensive, you should contact the other group and deny that your work copies any substantial part of theirs. Explain that if there are similarities, these are purely coincidental due to the simple nature of the genre of silhouette drawing which clearly limits the manner in which the elements of a picture can be expressed.

[sam]

Thank you very much for your detailed reply Andy, it is most helpful. The company concerned is well known in the area for objecting to not-for-profit community groups being on Facebook as they feel it dilutes their message. They make efforts to shut them down by bullying and sending solicitors letters saying their copyright has been infringed and to cease and desist. Obviously, receiving a legal letter frightens people and they back down not wanting to get involved in a costly battle for what is only a not-for-profit community forum.

The girl in our image has the dog behind her and an expert would be able to determine the breed of dog, in theirs, apart from being quite tiny, the dog is in front. Whereas they have used a white background we have shades of turquoise and where they have used colour it is a significantly different shade of a grey/green. One wonders how far along the colour spectrum one must go to be in a safe zone?

It's difficult to design a community cover image where houses, people and trees etc. are not included but they tend to think they have exclusive rights to any of those elements. There are lots of dog walking services in our area so it made sense to include someone with a dog. In fact many posts to the forum are about cats and dogs. No effort was made to copy their image and the elements used were incidental owing to the genre of the group it was intended for.

The image has only been live on Facebook for a couple of days and there are rumblings that they are not happy so we are expecting to be contacted by a legal representative in the near future. I just wanted to get advice before it got to that stage.

Many thanks again.

Sam.

[Nick Cooper]

It looks like LYD use at least two different but stylistically similar images for different areas. Notwithstanding the fact I can't see what you were using, they can't just claim ownership on the silhouette landscape form, as it's a widely graphic device.

[sam]

Thank you Nick. Can you not see the example that I linked to?

[Nick Cooper]

Thank you Nick. Can you not see the example that I linked to?

Not initially, as there is a rogue full stop in the URL, but having removed it, I can now see your image. On the face of it, LYD's claims seem extremely tenuous. They can't claim copyright simply on the silhouettes of people, trees, and houses, notwithstanding the fact that their are childish/naive in style, and yours are not.

Disclosure: I used to live in the Enfield part of Bowes Park, but I do not consider that constitutes a conflict of interest!

[sam]

\Thanks Nick.

[AndyJ]

Thanks to Nick for pointing out the problem with the URL. For the benefit of others reading this thread, here is the correct link to sam's representation: https://www.facebook.com/photo.php?fbid ... =1&theater. I have also corrected the link where it appears in the OP.

[Fatty]

I have read all the posts, viewed the two images, and have to concur entirely with everything And J has said.

I see only a vague similarity between the two images. You need to read the Temple Island v New English Teas Judgement Andy linked earlier. If they had evidence that you actually set out to create something similar then they may just about have something to base a claim on.

If, however, the two images were created completely seperatly from one another , then my unqualified layman's view is they do not have a case.
Do bear in mind though, that even if you believe you are innocent you should still respond to correspondence and tell them so. In particular never ignore a Letter of Claim, a claim form or anything from the court. Respond to each with, if appropriate, a denial that your image infringes thier copyright.

[sam]

Thank you Fatty. Good advice. It's all gone quiet now but should I receive a letter I will respond as you suggested. Many thanks.