Can a photo of an iconic symbol, say the latest statue of Mr Nelson Mandela in the gardens of the Union Buildings, amount to an original artistic work, which is protected by copyright? Could another photo, depicting the very same statue, infringe on the first art work?
The answer may be yes to both questions.
This issue has been considered by an English court. The court found that this photo of the iconic London symbols, Big Ben, the Houses of Parliament and a red double-decker bus, qualified as an original artistic work and that it was protected by copyright.
Creating a new image incorporating all these iconic symbols (from four separate photos), was held to infringe the copyright in the first image. The infringing photo is shown below: 
Although there are differences between the laws in the United Kingdom and South Africa, the principles applicable, are similar enough to make this case relevant to South African photographers.
In deciding whether the first photo was original and could be protected by copyright, the court looked at:
- The speciality of the angle of the shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;
- The creation of the scene to be photographed;
- Being in the right place at the right time.
The judge said that the composition of a photograph is perhaps a fourth aspect that can be considered.
Although the second photo, the “infringing copy”, was not identical to the first photo, the elements which were copied were regarded as substantial parts of the first photo. The specific combination of images in the first photo, which made it visually interesting, was copied. The infringing image was not just another snapshot of clichéd London icons.
So, my snapshot of the Nelson Mandela statue in front of the Union Buildings in Pretoria, will not infringe a photograph taken of Madiba’s statue by another tourist. If however, I try to recreate an existing photo of the same statue of Madiba, I should rather buy the original or an authorised print, or be original and create my own composition.
Taking ‘say cheese’ to a whole new level!
Jani Cronjé is a partner in the Trade Marks Department at Adams & Adams
