Copyright Aid

Hi
i want to design a Facebook cover using gimp, i have been looking at some tutorials on YouTube, this man does a great tutorial on how to create a light bulb that looks like it's turned on, i would like that for my Facebook cover, i would be creating my light bulb using my photo of a light bulb and following along to his tutorial
Would it be copyright? because i will be following along with his tutorials my light bulb will look the same as his, even though i designed it?
i am not sure

This is a tricky question because on the one hand you have Norowzian v Arks which says that technique is not protected by copyright, on the other you are almost directly copying the work of another, which is protected. In addition you have the ruling in Temple Island Teas (the "red bus" case) which seems to say that intending to copy the expression in one work, but producing a distinctly different work, is also an infringement.

There is also the provision of s32 of the Copyright Designs and Patents Act 1988, this gives you a general exception to copy works, in the course of "instruction or examination", but my understanding of this is that this exception does not apply if you subsequently go on to publish what you have produced.

The easiest way to put your mind at rest is to ask the author of the tutorial if he/she would object to you producing a work following her/his instructions, and then publishing that work.

Hi Gem28,

There are two aspects to this. First, it sounds as if you want to copy the idea, not the expression of it, and that would normally be fine. The Red Bus case that Clive B mentioned should not be seen as settled law, firstly because the facts in that case were particular, namely that this was not the first occasion that the defendant had sought to copy the claimant's work, and there was a strong background of commercial rivalry. Secondly many commentators thought it was a perverse decision, however since this was not tested on appeal we shall not know, and finally, since it was a decision in the (then) Patents County Court, it has no binding effect on any future court decision.

The second aspect about what you would like to do is whether the expression produced by the tutorial maker is original. Since we don't know exactly what the tutorial shows, it's hard to be sure, but this subject has been around in photographic/graphic circles for some time. Here for example is David Hobby's take on the subject from 8 years ago. It was one of the criticisms of the decision in the Red Bus case, that His Honour Judge Birss (as he then was) did not take sufficient notice of the wealth of prior art concerning the use of selective colouring of the bus, which he thought was a significant detail when it came to assessing if the defendant had copied the claimant's work.

Copying a technique, especially one which has been publicly demonstrated with the specific intention that viewers may copy it, falls into the 'recipe' class of activities. That is to say, it has long been settled law that merely following a cooking recipe does not infringe any copyright. So long as you use you own basic images and your own graphical skills in Gimp or any other program, and draw on a number of different sources for inspiration, I think there is little chance of your work being seen as infringing.

What Andy writes about Temple Island Collections is, at least, partially true. The wrinkles in his argument however are: many people do think it a strange decision, but they probably haven't read it properly – the main issue in the case is that the defendant intended to copy, and that cannot be considered "influence". As Andy pointed out the defendant had also been caught infringing on a previous occasion, so there was no doubt they had knowledge of the work they were infringing.

Does the case carry any weight? Well, it's been mentioned on this forum more than once, and not only by me, so it must have some relevance. As far as binding other courts goes, no, strictly it will not - but it will be persuasive in some cases. Probably, most importantly, should you find yourself making or defending such a case it's quite likely that you will end up in front of the same judge… who is likely to make the same decision, unless that rationale has been overturned in a higher court.

Andy goes on to make a good argument about recipes, but I don't know any cases about a Victoria sponge being communicated to the public. Perhaps he could elaborate and cite a few cases?

One has to ask, if there is no infringement in producing an image (to match another image) from a set of instructions, why it is that s32 CDPA 1988 creates that exception, but then goes on to prohibit communication to the public?

Gem, if you can contact the author of the tutorial, ask yourself: where would be the harm in having the courtesy to ask if they have any objection to you putting the results of the tutorial on your FB page? That introduces a transaction cost for you (your time), but is probably nothing compared to the time you will take preparing the image.

Andy, I'm not going through this point by point - I've made my comments to Gem. You and I clearly disagree.

However, what you can help me out with is the method by which s174 has an effect on s32. I read through both, including the latest revisions (S.I. 2014/1372 reg. 4(1), I think), but I am clearly too dim to find the connection.

Let me try to explain why I think that s 32 is not applicable to what Gem wants to do.
S. 32 is grouped under the heading Education along with ss 33 to 36.
S 174 provides a definition of "educational establishment and related expressions", which on the face of it might appear to include instruction (the word used in s 32) since it is clearly related by virtue of being under the same heading. But the Act does not define instruction so we need to look elsewhere to see if the use of 'instruction' as opposed to 'education' is significant. This part of 1988 Act arises principally from the 1971 Paris Act of the Berne Convention (as amended on 28 September 1979). The relevant Article is Art 10 (2).

(2) It shall be a a matter for legislation in the countries of the Union, and for special agreements existing or concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

The Paris Act refers to 'teaching' not 'instruction' and so it is unclear from this why the drafters of the 1988 Act chose to use a different word. Despite an 'educational purposes' exception being included from the very first Berne Convention of 1886, in wasn't until the 1956 Copyright Act that the UK first introduced the teaching exception (in s 41). This is where the word 'instruction' first appears in the statutes.

(a) in the course of instruction, whether at a school or elsewhere, where the reproduction or adaptation is made by a teacher or a pupil otherwise than by the use of a duplicating process, [...]

It is worth acknowledging that the words 'or elsewhere' might support what I assume is your argument that s 32 of the 1988 Act applies outside educational establishments as defined in s 174. However I suggest that the word 'elsewhere' merely refers to other establishments such as universities, colleges and the like (as encompassed by s 174) because the word 'school' is to narrow to include them. Since this was clearly unsatisfactory, this wording did not survive in the 1988 Act, and, I submit, s 174 was introduced to reflect the wider, formal, educational environment to which all the sections under the Education heading applied. I think it makes no sense to see s 32 alone out of the sections under the Education heading as falling outside the s 174 definition.
I am happy to concede that this is not settled law in the UK*. But with the rise in online instruction generally, and MOOCs in particular, it is only a matter of time before this issue is tested in the UK courts.
Incidentally, for the sake of completeness, the EU Directives, principally the Copyright Directive 2001/29, are of no assistance. Directive 2001/29 Art 5 (3)(a) leaves it to member states to determine the extent of any exceptions for the purpose of teaching.

* The USA has already attempted to address this specific issue with the TEACH Act.

Edited to correct typo in the numbering of the EU Directive in the final paragraph.

Clive,
On the subject of the Red Bus case, here's a contrasting decision from the Korean Appeals Court. Given that the report doesn't say if the amateur photographer deliberately set out to copy Kenna's iconic image, I think that the fact the original was very well-known tends to suggest this was not independent creation. Obviously there differences between the Korean case and the Red Bus case, but it is interesting that the Korean court seems to have considered the idea vs expression issue far more than was done in the Red Bus case.